Microsoft: Feds are ‘rewriting’ the law to obtain emails overseas

The Obama administration is abandoning decades of established law in order to force Microsoft to hand over data from a foreign server, the software giant claims.

“For an argument that purports to rest on the ‘explicit text of the statute,’ the Government rewrites an awful lot of it,” Microsoft said in a new brief as part of its case against the government.

“Congress never intended to reach, nor even anticipated, private communications stored in a foreign country when it enacted” the 1986 Electronic Communications Privacy Act, Microsoft said.

{mosads}Yet that, it claims, is exactly what the Justice Department is trying to do by issuing a search warrant ordering Microsoft to give up a suspected drug trafficker’s email and records from an Irish data center.

Microsoft has claimed that digital data is no different than paper files in a desk drawer. If the government wants to obtain such files from another country, it needs to go through a foreign treaty process, the company says. Otherwise, it’s up to Congress to change the meaning of the law.

“Until U.S. law is rewritten, we believe that the court in our case should honor well-established precedents that limit the government’s reach from extending beyond U.S. borders,” Microsoft general counsel Brad Smith wrote in a blog post on Thursday. 

In particular, Smith urged support for the Law Enforcement Access to Data Stored Abroad (LEADS) Act, which would update the 1986 law in several ways. 

“Looking back, there’s no indication that Congress intended to expand the geographic reach of search warrants when the statute was written in 1986, long before the dawn of the era of cloud computing,” he wrote.

The government has said the data’s location does not matter because Microsoft has “full control” of it and can easily access it from the U.S.

“Microsoft’s decision to store email records in data centers outside the United States does not deprive it of control over the records,” the Justice Department said in a brief last month. 

“Regardless of the storage location, the records remain readily available to U.S.-based Microsoft employees through a computer program that can ‘collect’ the records from the data centers where they are stored and import them into the United States.”

A lower court judge ruled against Microsoft last summer, but the company has appealed. Oral arguments are expected in the 2nd U.S. Circuit Court of Appeals this summer.