Lawmakers and policy makers usually fall behind of technological advances. Therefore it is safe to say digital disruption is not only a problem for businesses but also governments. The current legal battle between the U.S. Department of Justice and Microsoft can potentially seriously damage your privacy.

Cloud computing has changed our lives. Profoundly. It has never been easier or faster to access information from anywhere in the world. Many tech companies have server farms all around the world to provide better, safer and faster services to their customers.

This constitutes a problem when law enforcement agencies want access to personal information. The current  legal battle between the U.S. Department of Justice (DoJ) and Microsoft is a monumental struggle because it will shape the future of internet and our privacy.

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The DoJ versus Microsoft case

In December 2013, DoJ served a warrant to Microsoft demanding access to a Microsoft customers e-mails. Allegedly the customer in question was involved in drug trafficking. Microsoft refused to comply with the warrant on the basis that e-mails are stored in Microsoft servers in Ireland. The warrant was not valid for releasing overseas data. Microsoft advised the DoJ to collaborate with Irish authorities to get a warrant in Ireland for accessing the e-mails.  

In July 2014 a U.S. district court ordered Microsoft to turn over the e-mails, but Microsoft appealed to the second circuit court of appeals. The hearing took place in September 2015, the process will take time but Microsoft is determined to carry the case all the way to Supreme Court.

There are two important parts in DoJ’s arguments and Microsoft’s counter arguments: First one is the question of sovereignty; the U.S. government thinks that the location of the data is not important, and that the nationality of the company is the deciding factor. 

Microsoft of course have the opposite opinion. The data centers are in Ireland, therefore it is under Irish courts’ jurisdiction. Providing access to those data is equal to unilateral law enforcement incursions into a foreign state,which is a clear violation of a Ireland’s sovereignty.

Imagine if it was the other way around: If Ireland demanded Microsoft to provide communications that was stored in it’s American data centres? American privacy laws strictly forbids handing over private communications to foreign law agencies. It takes approximately ten months to go through mutual legal assistance procedures.

Does storing the data mean ownership of data?

The second part is the question of ownership, and this is the part that we should all be worried about…

Microsoft argues that they are not the owner of the e-mails in questions, they are only storing them as third party. There are many court precedents that even a custodian third party must hand the records, physical and digital, to authorities when a solid warrant is served for the records.  But this is only applicable to business records such as, money transactions, bank records, bills etc.

Microsoft argues that content of the e-mails in questions is personal communication. US courts acknowledge that if a letter is sent through the mail, the contents are not considered as a business record of the postal services. Therefore e-mails are also protected by privacy laws.

The DoJ opposes this idea and claims customer e-mails are cloud operators’ business records. Therefore when a warrant is issued companies are required to comply and hand over the emails to officials.

“This notion of the government that private emails are Microsoft’s business records is very scary.” said Microsoft’s counsel Joshua Rosenkranz in court during the hearing in second circuit court of appeals.

The DoJ v. Microsoft case is a very important case. One of our most fundamental rights will be damaged heavily if the court decides that emails are indeed cloud operators’ business records. Microsoft is dedicated to take the case to the Supreme Court. But only because if our private communications are considered a business record, the whole cloud sector will suffer a heavy blow. One that will limit their business.

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No need for Big Brother?

When George Orwell wrote his famous dystopian novel; 1984, his biggest fear was that our governments may start monitoring our every move. Today, there is no need for big brother. We constantly check-in and reveal our location along with what we are doing.  

The movies we watch, the books we read, the music we listen to… We openly share that information on social media. Our thoughts, our mood, monumental moments of our lives are freely available on social media.

We trust tech companies and let them store our sensitive information. When a government consider our private correspondence with other people or companies as a business record of a cloud operator, this violates our basic right of privacy.

Privacy for clients

What is striking is the loopholes in the international law regarding cloud computing. Judge Gerard Lynch, was one of the three judges that attended the hearing of the DoJ v Microsoft case. He asked  whether Microsoft could take everyone’s emails to some briefcase-bank country that has no regulations and disclose them to the National Enquirer? (a celebrity gossip magazine) Microsoft’s council Rosenkranz confirmed that legally microsoft could do that.

No cloud operator would of course willingly share confidential client information. That would simply be a suicide. Their business would be destroyed. Equally, the DoJ’s view of emails as business records is very dangerous.

This view is a direct violation of privacy laws. Furthermore this view may be applied to any other file stored in the cloud. Imagine if all your personal files could be accessed by the law enforcement agencies, since they were considered to be a business record.

It is evident that lawmakers and policy makers fall behind in the digital age. We need to update our laws and policy accordingly. In the DoJ v. Microsoft case,  the DoJ’s arguments are based on a Reagan era law that enables law enforcement to access any stored electronic communications after 180 days. This is highly disturbing and worrying.

Internet, social media and cloud computing powers us with unique opportunities. Never in the history of mankind have distribution of knowledge been more easy. This also brings some challenges to the table, as not all accessible information is reliable. But we cannot deny the importance of internet and related services.

Business model at risk!

If Microsoft hands over the emails to the DoJ, this will without doubt cause many issues. Just imagine oppressive regimes serving warrants to obtain data stored in other countries.

When Edward Snowden blew the whistle about National Security Agency’s (NSA) mass surveillance program, public distrust against the American government and American tech companies dramatically increased. Snowden exposed that NSA was eavesdropping to 35 foreign leaders, some of them are NATO members. Therefore Microsoft is on very thin ice, if they comply with the DoJ. Their business model is at risk.

Microsoft is dedicated to carry the case to the U.S. Supreme Court, and justices of Supreme Court seldom reach unethical decisions. This whole process will take couple of years but this single case proves that we need to transfer our policies and laws to the digital age.

International criminals and terrorist are using internet too. Most people would agree that we want government agencies to get access to their data to prevent actions of terror. When infamous international criminals are concerned, governments are more than willing to cooperate with each other. But not every criminal is an international one. Inevitably an international system, free of bureaucratic juggling, is required for an effective and efficient intergovernmental cooperation when it comes to combating terrorism.

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