We Want YOU…to Give Us Your Email

Uncle Sam

This article will discuss a battle over cloud user data that started a year ago. Microsoft is at the center, but various other major players in the industry have officially come out in support of the Seattle-based (Redmond) corporation. We will discuss this issue as follows:

  • Collaborative Shift from Public to Private
  • Joining Hands with the Competition
  • Breach of International Law?
  • Open Government Access to Email

Collaborative Shift from Public to Private

Microsoft has been successful in rallying other computing giants to its defense as it tries to prevent the US government from accessing its Ireland-based data center.

According to a December 15 report in The Register, federal prosecutors want to review emails that are stored outside national boundaries through a search warrant issued by an American judge. Microsoft is fighting the decision.

This court battle could seem to be a turnaround for Microsoft. Previously, the National Security Agency announced that it appreciated the “collaborative teamwork” of Microsoft (per The Register) in giving the intelligence community access to Outlook.com.

In fact, the Edward Snowden leak included documents from the NSA’s Special Source Operations (SSO) department that showed Microsoft giving backdoor cloud software entry to the spy agency.

Microsoft told the press, however, that it was only making data available to comply with police and security agencies, expressing a hint of frustration: “There are aspects of this debate that we wish we were able to discuss more freely.”

Additionally, Microsoft was not the only organization that had been at work with the NSA. The Guardian noted in June 2013 that the agency had “direct access” via Prism to the systems of major firms such as Microsoft, Apple, Google, and Facebook.

Joining Hands with the Competition

At a December 15 event in New York City – the Electronic Privacy Press Event – Microsoft commemorated the end of its first year standing up to the court order. Brad Smith, general counsel for Microsoft, said that the company is not going to surrender. It has now filed support statements from companies including Apple, Amazon, AT&T, Verizon, and eBay.

Breach of International Law?

Smith noted that the company is taking a stand because he does not think that the US government is trying to access its systems “in a manner that respects existing domestic and international laws.” He stated that trying to use a search warrant to access emails worldwide is not only a threat to privacy but damages the nation’s relations with other countries.

The amicus briefs supporting Microsoft’s position, filed December 15 through the US Second Circuit Court of Appeals, included signatures from more than two dozen US technology companies, 23 professional organizations and nonprofits, and almost 3 dozen computer scientists at prestigious American universities.

The appeal from Microsoft came in response to a warrant delivered to them in December 2013 that instructed them to give the government the messages and contact list of a particular user who was suspected of drug charges. Note that we should not think Microsoft was making a philosophical statement but that it is essentially being trapped between two different sets of laws: the United States wants data that is stored in Dublin, but giving it to them would break European Union laws.

According to Martin Reichert, the European Commissioner for Justice, the court order sidesteps the Mutual Legal Assistance Agreement, put into place specifically to process government data queries. Just like Microsoft created a backdoor to the Outlook cloud, it seems that the federal government is trying to use Microsoft to create a backdoor for access to extraterritorial situations.

As Reichert puts it, the actions of the United States “may be in breach of international law and may impede the attainment of the protection of individuals guaranteed in the Union.” In other words, the European Commission is miffed that the US is placing its criminal investigative concerns in its own War on Drugs ahead of the privacy rights of citizens operating within European jurisdiction.

New York District Judge James Francis did not agree with the EU’s designation of emails as personal information, instead ruling it was business communication. In other words, the EU rule and US federal court system are at odds, and Microsoft is caught in the middle.

In July, Microsoft lost its appeal and subsequently requested to be held in contempt of court. It’s hard to know exactly what Microsoft is supposed to do when one government is telling it to hand over data and the other is telling it that’s against the law. The tech company is cornered and must keep moving the case up the ladder to the Supreme Court. It’s truly bizarre to see Microsoft playing the David in a David and Goliath war, but that seems to be the madness that has been created by this situation, with more courtroom battles yet to come.

Open Government Access to Email

Microsoft warned from the New York City event that email privacy was generally at risk: if the US can do this to extraterritorial data centers, so can the governments of other countries in turn. US companies are worried that their clouds will become unpopular worldwide if they are “subject to the whims of US judges” (quote from The Guardian).

Verizon notes that billions of dollars could go down the drain for the American cloud market if those concerned with privacy go abroad for their solutions. Plus, if users start favoring cloud in non-US countries, the US won’t have access to any of that data because an American company would no longer be involved. Essentially, Verizon and the other companies are arguing that the US government is making it more difficult to do cloud business, right at the point that the cloud is becoming the go-to computing solution.

Smith argued that there should be “a change in US law to bring it into line with the email age.”

These days, we are all concerned about the privacy of our data. If you want the data of your business to be fully contained within a private system, but you still want to take advantage of the incredible power and efficiency of the cloud, try Dedicated Cloud from Superb Internet.

By Kent Roberts

“Uncle Sam” free use image via Wikipedia