Microsoft is being held in contempt of a federal court order directing it to immediately turn over email data held at a data center in Dublin to federal authorities.
"Microsoft will not be turning over the email and plans to appeal," a Microsoft statement noted when the court order first came down, in August. "Everyone agrees this case can and will proceed to the appeals court. This is simply about finding the appropriate procedure for that to happen."
The messages in question involve a federal narcotics trafficking case, and were originally sought under warrant at the end of last year.
Judge Loretta Preska, chief of the US District Court in Manhattan, had suspended the order temporarily while arguments could be made for and against the notion that it would be illegal for US authorities to search and seize data held internationally. Eventually, however, she lifted that after federal prosecutors made their case that it was not in fact outside the government’s purview. And now, a few weeks later, the contempt finding has been handed down.
A silver lining for Microsoft: it may be in contempt, but the government has agreed to avoid sanctions and fines, for now.
In the wake of the Edward Snowden revelations of widespread government surveillance—allegedly with the help of tech giants like Microsoft—the accused parties have beefed up transparency, encryption efforts and other privacy controls in an effort to mitigate brand damage. Brad Smith, Microsoft’s general counsel and executive vice president for legal and corporate affairs, laid the tech giant’s case out in an editorial over the summer, reiterating that the court order violates Ireland's sovereignty, and hitting the privacy message pretty hard.
“Microsoft believes you own emails stored in the cloud, and that they have the same privacy protection as paper letters sent by mail,” he wrote. “This means, in our view, that the US government can obtain emails only subject to the full legal protections of the Constitution's Fourth Amendment. It means, in this case, that the US government must have a warrant. But under well-established case law, a search warrant cannot reach beyond US shores.”
The company's case in New York's federal court involves not only vital constitutional principles, but important practical considerations as well, he added.
“If the US government prevails in reaching into other countries' data centers, other governments are sure to follow,” he said. “One already is. [In July] 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 US by Americans who have never been to the UK.”