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Microsoft fights US government and wins

Microsoft is suing the US government over its aims to search emails stored overseas. (AP)
LISTEN: McKenna explains Microsoft's lawsuit against the US government

The United States government wanted an email of an MSN user and it wanted Microsoft to hand it over. But Microsoft wasn’t so quick to comply. The email is on a server in Ireland and between that server and the U.S. was a gap in the law.

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“Microsoft’s point is that we have treaties called mutual legal assistance treaties between the U.S. and countries like Ireland that are designed for this very purpose – to facilitate searches,” former Washington State Attorney General Rob McKenna told KIRO Radio’s Dave Ross. “But the Irish government has to agree to them.”

“Here, the U.S. government claimed that emails of this MSN customer they were investigating were effectively in Microsoft’s control and it didn’t matter that the data center where they were being stored was in another country,” he said.

In this case, investigators wanted to look at the Irish emails in pursuit of drug traffickers.

Microsoft vs. the U.S.

McKenna notes that courts generally refer to the Electronic Communications Privacy Act when dealing with such issues. But that was passed in 1986 — three years before the modern concept of the World Wide Web was even imagined.

Treaties would usually apply in such search-warrant cases. But the U.S. government is arguing that borders don’t matter in this instance because the material is electronic. That spurred Microsoft into suing the U.S. government over the matter.

“Microsoft’s entire point is that it’s not the same,” McKenna said, noting that the case challenges the constitutionality of the law.

And that argument has countries like Ireland or Germany, for example, worried that their digital material is not safe from the U.S. government if they use software from U.S. companies. In most cases, McKenna notes, if you live in another country, your email will likely be stored in that country. But there’s nothing preventing it from being stored anywhere on the planet.

“Think of it the other way around,” McKenna said. “If the Chinese government issued a search warrant for a digital document stored on a server in Silicon Valley and said they could just go in there and pull files from that server, we would be pretty unhappy about it.”

While it’s one win for the tech giant, Microsoft is not finished fighting the government. Lawyers for the company recently made their arguments in U.S. District Court for a separate case.

GeekWire reports that U.S. District Court Judge James L. Robart is faced with deciding whether Microsoft has to turn over emails it has access to if they are stored on a foreign server. The judge may be faced with creating a new law through his decision, GeekWire reports. There just aren’t any cases that deal with the issue. Perhaps that’s because laws on the books could be a little out of date.

If judge Robart rules in favor of Microsoft, then the case will move on to a trial. If he sides with the government’s arguments, “it knocks down both Microsoft’s First Amendment and its Fourth Amendment arguments,” GeekWire reports.

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