Apple, Cisco Back Microsoft Data Request Challenge

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Major companies are lending their support to a Microsoft court challenge to the US government’s request for email data stored in Europe

Apple, Cisco and the Electronic Frontier Foundation have filed court papers in support of a legal move by Microsoft to challenge a US search warrant seeking access to customer emails stored on European servers.

The amicus briefs, filed on Friday, join those by Verizon and AT&T filed earlier last week. Such “friend-of-the-court” papers are intended to show support for a defendant’s cause.

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Criminal investigation

The dispute involves a December warrant filed by the US government seeking access to Microsoft customer data stored in Dublin, Ireland, as part of a criminal investigation. Court documents involving the case were made public at the beginning of last week.

Microsoft’s challenge asserts that the US government’s position is “extraordinary”, in that it would mean a search warrant served on any US-based email provider would apply to the emails of any subscriber, no matter where in the world the data is located, and, furthermore, without the knowledge or consent of either the subscriber or the relevant foreign government.

In April, a magistrate in the US District Court of the Southern District of New York had ruled that the US government did not need to make use of the Mutual Legal Assistance Treaty (MLAT) process to obtain the emails from Ireland. In their joint brief, Apple and Cisco argued this decision placed a burden on private companies of reconciling “conflicting international laws”.

“The government, not private parties, is best suited to navigate complex sovereignty issues… and it has chosen to use the MLAT process to strike the correct balance,” the document states.

‘Loss of confidence’

The companies said the US’ position places companies at risk of foreign sanctions, threatens a loss of customer confidence in US providers, and could also encourage overseas governments to take similar actions.

“Magistrate’s analysis… encourages foreign law enforcement to take reciprocal actions by using equivalent foreign laws to require production of data stored in the United States, despite disclosure prohibitions in US law,” Apple and Cisco declared in the joint filing.

The Electronic Frontier Foundation said the matter is covered by the US Constitution.

“The Fourth Amendment protects from unreasonable search and seizure. You can’t ignore the ‘seizure’ part just because the property is digital and not physical,” said EFF staff attorney Hanni Fakhoury in a Friday statement.

The government argued in an April filing that following Microsoft’s position would have “a devastating impact on the government’s ability to conduct criminal investigations”.

Customer notification

Since the disclosures last year of mass electronic surveillance by the US’ National Security Agency (NSA), US Internet companies have made efforts to be more vocal about notifying customers of efforts to gain access to their emails.

Last month Microsoft made public an incident at the end of 2013 in which the FBI requested data on a business customer, accompanied by a “gag order”. Microsoft challenged the gag order in court, asking for the right to notify the customer of the request, and the FBI decided to withdraw the request.

In December 2013, Microsoft said it was “committed to notifying business and government customers if we receive legal orders related to their data… Where a gag order attempts to prohibit us from doing this, we will challenge it in court.”

Companies including Apple, Facebook, Google and Microsoft have in recent weeks expanded the cases in which they will automatically notify users of data requests from the government, although such notifications do not apply to data requests accompanied by a gag order. Microsoft’s commitment to challenge such gag orders only applies to requests affecting business customers, the company said.

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