Microsoft's fight against the US position that it may search its overseas servers with a valid US warrant is getting nasty.
Microsoft, which is fighting a US warrant that it hand over e-mail to the US from its Ireland servers, wants the Obama administration to ponder a scenario where the "shoe is on the other foot."
"Imagine this scenario. Officers of the local Stadtpolizei investigating a suspected leak to the press descend on Deutsche Bank headquarters in Frankfurt, Germany," Microsoft said. "They serve a warrant to seize a bundle of private letters that a New York Times reporter is storing in a safe deposit box at a Deutsche Bank USA branch in Manhattan. The bank complies by ordering the New York branch manager to open the reporter's box with a master key, rummage through it, and fax the private letters to the Stadtpolizei."
In a Monday legal filing with the 2nd US Circuit Court of Appeals, Microsoft added that the US government would be outraged.
"This case presents a digital version of the same scenario, but the shoe is on the other foot," the Redmond, Washington-based company said in its opening brief in a closely watched appeal.
The appeal is of a July court decision demanding that Microsoft hand over e-mail stored on an overseas server as part of a US drug trafficking investigation. Microsoft, which often stores e-mail on servers closest to the account holder, said the e-mail is protected by "Irish and European privacy laws."
But a US judge didn't agree. "It is a question of control, not a question of the location of that information," US District Judge Loretta Preska ruled. The order from the New York judge was stayed pending appeal.
Other companies in the tech sector are siding with Microsoft, too. Apple, AT&T, Cisco, and Verizon all agree with Microsoft. Verizon said (PDF) that a decision favoring the US would produce "dramatic conflict with foreign data protection laws." Apple and Cisco said (PDF) that the tech sector is put "at risk" of being sanctioned by foreign governments and that the US should seek cooperation with foreign nations via treaties, a position the US said is not practical.
The Justice Department said global jurisdiction is necessary in an age when "electronic communications are used extensively by criminals of all types in the United States and abroad, from fraudsters to hackers to drug dealers, in furtherance of violations of US law."
Brad Smith, Microsoft's general counsel, said in a blog post Monday that the company's invocation of the Stadtpolizei analogy underscores that if the US prevails, "how can it complain if foreign agents require tech companies to download e-mails stored in the US? This is a question the Department of Justice hasn’t yet addressed, much less answered."