|Monday, 09 January 2017 15:48|
By: Arthur M. Freyre
Microsoft and the Department of Justice have had a few interesting court cases over the past twenty years, with the most famous being the anti-trust case involving the Internet provider, Netscape. This latest battle between the DOJ and Microsoft might become the most notorious.
The case is known as the Microsoft Ireland case. The Microsoft Ireland case centers on the DOJ’s warrant to review emails in a customer’s account maintained by Microsoft pursuant to the Stored Communications Act (the “Act”).[i] The Stored Communications Act which was passed in 1986, made it illegal for one to access an electronic storage facility without the proper authorization.
The DOJ’s warrant sought out information stored on a server in Ireland. Microsoft refused to hand over the requested data under the pretense that the warrant referred only to materials in the United States and not those outside of the country. The dispute over the warrant’s validity went to the Second Circuit Court of Appeals, which ruled that the DOJ could not use their warrant pursuant to the Stored Communications Act. The court reasoned that the Congress did not intend for the prevision regarding warrants to be executed outside of US territory. The Court also recognized that the Stored Communications Act needed to be revised due to the fact that the law was passed before the Internet became prevalent.
Recently, the DOJ announced that it would draft a “legislative fix” to address the Second Circuit’s ruling. However, there is a tool that the DOJ currently has at it’s disposal to address this issue. That tool is the Mutual Legal Assistance Treaty.[ii] Mutual Legal Assistance Treaties (MLATs) are agreements between the United States and foreign governments in matters involving a criminal investigation.[iii] The focus of these treaties is cooperation between the countries’ respective law enforcement agencies. However, there are only a few of these treaties between foreign governments and the US. A major criticism of using MLATs regarding emails or other communications stored on servers is the amount of time it would take to obtain the warrant and review the collected information. Given the immediacy of reviewing emails and other forms of cyber communications, the DOJ fear that such information will be permanently lost.
Based on the DOJ’s comments, it would appear that they intend to bypass the MLATs. Although the DOJ’s proposal is still in the beginning stages, Congress needs to be wary in granting them such powers. The major problem with the idea of bypassing MLATs is the issue of reciprocity. Reciprocity under international law allows country A to execute its laws on country B when country B executes its laws on country A. The application of this law may have a potentially damaging effect. For instance, imagine China or Russia executing search warrants pursuant to their criminal laws against individuals who criticize their governments via twitter or email and seeking that information on American servers.
Congress needs to be very judicious and careful in granting extraterritorial reach for US search warrants as it revises the Stored Communication Act. The Department Of Justice must also recognize that the rules regarding data and the flow of data are still evolving. Foreign policy makers are still tuned in to organizations such as the NSA and other countries’ abilities to spy on conversations from any part of the world. Instead, the DOJ needs to make every effort possible to reach out to its counterparts in the EU and other international bodies to implement a special type of MLAT as it relates to email or other cyber communications. By developing a specific treaty relating to legal assistance involving electronic communication and data storage with congressional action, DOJ may have a more appropriate way of addressing such problems.
[i] See “Microsoft Case Shows the Limits of a Data Privacy Law,” http://www.nytimes.com/2016/07/19/business/dealbook/microsoft-case-shows-the-limits-of-a-data-privacy-law.html?_r=0
[ii] See “DOJ to Propose ‘Legislative Fix’ on Overseas Digital Evidence,” http://thehill.com/policy/cybersecurity/309478-doj-official-well-propose-legislative-fix-on-overseas-digital-evidence?utm_source=&utm_medium=email&utm_campaign=5313
[iii] For an example of a Mutual Legal Assistance Treaty, please visit http://www.fjc.gov/public/pdf.nsf/lookup/mlat-lr-guide-funk-fjc-2014.pdf/$file/mlat-lr-guide-funk-fjc-2014.pdf