Anti-privacy court ruling shows why Microsoft is one of privacy's best friends

If you're worried about your privacy, Microsoft is one of your best friends. Microsoft's decision to appeal a court ruling that it has to turn over to the federal government email stored in Ireland shows once again that the company is fighting for your electronic privacy rights.

The ruling has to do with a search warrant in which the federal government demanded that Microsoft turn over copies of emails the company stored in a server in Ireland. The warrant is part of a drug investigation.

Microsoft fought in court against turning over the information, and a magistrate judge ruled against the company. Microsoft appealed, and then yesterday District Court Judge Loretta Preska ruled that Microsoft had to turn over the emails.

The heart of the issue has to do with whether email stored in the cloud has the same constitutional privacy rights as does mail sent the traditional way, via paper. Microsoft argues it does. The government argues it does not. Microsoft general counsel Brad Smith, writing in the Wall Street Journal before the ruling, explained Microsoft's thinking this way:

"Microsoft believes you own emails stored in the cloud, and that they have the same privacy protection as paper letters sent by mail. This means, in our view, that the U.S. government can obtain emails only subject to the full legal protections of the Constitution's Fourth Amendment. It means, in this case, that the U.S. government must have a warrant. But under well-established case law, a search warrant cannot reach beyond U.S. shores."

Later on, he warns that if this ruling stands, it will mean that foreign governments will take the same tack and be able to obtain emails that are stored in U.S. data centers -- without even warning the U.S. government or you:

"The company's case in New York's federal court involves not only vital constitutional principles, but important practical considerations as well. If the U.S. government prevails in reaching into other countries' data centers, other governments are sure to follow. One already is. Earlier this month the British government passed a law asserting its right to require tech companies to produce emails stored anywhere in the world. This would include emails stored in the U.S. by Americans who have never been to the U.K.

"It's hard to believe that the American people will blithely accept that foreign governments can obtain their emails stored in U.S. data centers without letting them know or notifying the U.S. government. Yet the U.S. government is taking precisely this position toward emails stored in Microsoft's data center in Ireland."

Smith is absolutely right. Microsoft is right to fight the government on this. And it's continuing to fight by appealing the ruling.

The company has the backing of the tech industry and privacy advocates. Gregory Nojeim, senior counsel for the Center for Democracy and Technology, told the Washington Post:

"The ruling could lead to chaos, where other governments demanding reciprocal treatment insist that their warrants compel U.S. providers to turn over content that they store in the United States."

This isn't the first time that Microsoft has fought the government over privacy issues. In May, Microsoft fought the FBI by refusing to turn over data to the FBI about one of the company's enterprise customers. The FBI had issued to Microsoft what is called a National Security Letter asking for the information. The letter told Microsoft that it could not even publicly acknowledge that it received the request. MIcrosoft wasn't even allowed to tell the company about it. Microsoft challenged it in court, because, in the words of Smith:

"We concluded that the nondisclosure provision was unlawful and violated our Constitutional right to free expression. It did so by hindering our practice of notifying enterprise customers when we receive legal orders related to their data."

The FBI backed off, and Microsoft won.

This time, though, the government will push on. And at the moment, the only thing standing in its way is Microsoft. It's likely true that in the past Microsoft was too cozy with the NSA. But Microsoft has gotten privacy religion, and that's a good thing.

Copyright © 2014 IDG Communications, Inc.

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