In July 2016, the U.S. Court of Appeals for the Second Circuit ruled that while the Stored Communications Act does indeed allow the U.S. government to demand access to information stored on servers located on U.S. soil, information stored on servers overseas is off limits without going through the relevant local legal process. Nevertheless, the U.S. government hasn’t given up on its fight to gain access to that data, and asked the appellate court on Thursday to reconsider its decision, as Ars Technica reports.
Microsoft’s argument remains the same as it was preceding July’s ruling — every Microsoft customer has the right to be protected by local laws rather than those of a foreign government, such as in the case of the Dublin, Ireland, servers that were the subject of the previous ruling. The appellate court noted that at least in the case at hand, a method already exists to compel the release of information using local laws. The Mutual Legal Assistant Treaty allows the U.S. government to request and receive local warrants applicable to Microsoft subsidiaries located in Ireland.
The U.S. government argues, however, that national interests are at stak,e and that Microsoft, as a for-profit private company, should not be allowed to represent its clients in terms of these sorts of privacy issues. As the government stated in its request for reconsideration, “It cannot be true that the ‘focus’ of the statutory provision is privacy, but the protection of that privacy interest rests entirely on the profit-driven decisions of a private business, with no choice by or consultation with the owner of the account and the beneficiary of the privacy interest.”
Putting things even more strongly, the government said, “The Opinion has created a regime where electronic communication service providers — private, for-profit businesses answerable only to their shareholders — can thwart legitimate and important criminal and national security investigations, while providing no offsetting, principled privacy protections.” Of course, Microsoft disagrees with the government’s position and isn’t backing down — a move that’s being monitored by a vast array of companies that could be impacted by the decision and that are largely supporting Microsft’s efforts.
If the appeals court refuses to rehear the case, then the government would likely be inclined to take the case all the way to the U.S. Supreme Court. When that decision will be made remains up in the air, because the appellate court has not indicated when it will consider the government’s request.
