Microsoft finds US public supports its fight against US warrant for offshore email

A new survey commissioned by Microsoft has found that most Americans agree with the reasons it's resisting a US warrant for it to cough up emails stored in its Irish data centre.

The US public, it would seem, has the same concerns as Microsoft does if the US court system upholds a US warrant for email hosted in Microsoft’s datac entre in Ireland.

According to the survey, 86 per cent of Americans in its “national privacy survey” of 800 people agree that “police should have to follow the same legal requirements for obtaining personal information stored in the cloud as they do for personal information stored on paper”.

The survey tests public support for Microsoft's arguments against a warrant served by a US district court in New York judge last December under the Electronic Communications Privacy Act. The warrant would assist a criminal investigation underway by the US government.

Microsoft and those that have backed its legal claim, including Apple, Cisco, the EFF, AT&T and Verizon, have argued the government should rely on mutual legal assistance treaties (MLATs) when law enforcement investigate a domestic crime where information is offshore — essentially that the same rules apply online as they do for paper trail investigations.

The courts however so far disagree on the basis that the Act allows for a special type of warrant that helps authorities investigate crimes where evidence is in the cloud, in part because the “search” occurs on US soil since it asks the US company to produce the email.

If Microsoft loses its challenge, it’s argued that US citizens could face a backlash from governments abroad if US law enforcement does not follow well-established procedures for paper investigations.

According to Microsoft’s survey, most Americans share its concerns with 56 percent saying they are worried other countries will reciprocate and "force" companies to turn over Americans' private information.

US citizens of course are concerned about the possible impact to them from the outcome of Microsoft’s legal challenge.

Eighty-three per cent of Americans interviewed disagreed with the idea of police in a foreign country obtaining the emails of a US citizen stored in the US without informing that citizen or the US government.

It also found that 61 per cent were against the idea that “US police should be able to obtain the emails of a non US citizen stored in a foreign country without informing that citizen or the government where the emails are stored.”

At the same time, 79 per cent agreed that “the federal government should have to respect local privacy laws when trying to search through people's personal information like their email accounts.”

The results of the survey are being taken by Microsoft’s chief legal counsel Brad Smith as a sign that neither the US or UK governments understands that the American public sides with Microsoft on these questions of privacy and the internet.

“Now we need to hope that [US] government officials will pay attention to this digital common sense. They’re not doing that yet,” said Smith of the survey results.

“Last week the Government in the United Kingdom proposed new legislation that would go in the opposite direction, extending extraterritorial jurisdiction for warrants to other countries and reaching unilaterally the email of people who are not British citizens or residents.

"And in our case the US Attorney’s Office in New York filed a brief arguing for a broad mandate for law enforcement to reach email in Ireland without informing the Irish Government or following the treaty put in place between our two governments.”

Other concerns raised by Microsoft’s ‘amicas curae’ supporters in the legal case are that the style of warrant could damage trust in US companies.

Europe also also been campaigning against US warrants that tread on its turf. EU vice president Viviane Reding recently weighed in on Microsoft’s side, saying the EU was concerned that “the extraterritorial application of foreign laws (and orders to companies based thereon) may be in breach of international law and may impede the attainment of the protection of individuals guaranteed in the Union".

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