9 ms·

Not defending MS at all but what is the alternative for them? What people want is the judicial oversight. But can Microsoft really go to a court and say "hey ju

by pktgen 13y ago

Not defending MS at all but what is the alternative for them? What people want is the judicial oversight. But can Microsoft really go to a court and say "hey judge, we're Microsoft, we want a warrant for Microsoft to provide this"?

deleted 13y ago
[deleted]
sliverstorm 13y ago
Alright Microsoft, your days on the run are over. We, Microsoft, have gotten a subpoena against you. Now cough up that data, us. I mean you.
glimcat 13y ago
Ideally, I'd like to see a situation where you (1) have a contract protecting user data which is reasonably enforceable given the power dynamics which exist between the two parties, and (2) it's required for a judge to arbitrate whether a given situation provides justification to breach that contract. Where "judge" is proxy for a nominally impartial third party who nominally has the experience to make an informed decision which reasonably protects the interests of both parties, the public interest, and our stated commitments to civil liberties. And we already make routine use of judges for this function in cases where the data or other artifacts are not possessed by the party who wants extraordinary permission to access them.
crygin 13y ago
Agreed -- based on MS's statement they went through a fairly rigorous internal procedure (of course, they could be lying, but it seems fairly unlikely particularly given the regulatory attention MS generally has on it). I don't fully understand what people think they "should" have done to access the emails -- waste a court's time on a meaningless judgement?
- PythonicAlpha 13y ago
  No, not waste! When you act rightfully, it is never wasting time of the legal system! Because I can do something (without asking anybody else) it needs not to be right!
  - ewoodrich 13y ago
    >When you act rightfully, it is never wasting time of the legal system! In this case, it really would be a waste of time. Microsoft wouldn't be seeking a subpoena, nor are they a government seeking a warrant. Microsoft would just be asking the court for permission to do something the court cannot grant. There's no legal question, unless say, someone were to sue Microsoft for accessing their data.
    - PythonicAlpha 13y ago
      I am not familiar with the US law system, but in our country it would be normal, that for example my landlord has to go to court before he can search my house, even when he is the owner. And the warrant is not against the landlord, but against me. So I disagree with your statement, at least in my country it would be not wasting anything ... but DOING THE RIGHT THING! And I would really wonder, if in the US the landlord could just search your house, because he thinks that you might have stolen something of him -- with the argument, that he does not want to "waste anybodies time"!
      - URSpider94 13y ago
        I think the problem is that we have extensive precedent in the USA that warrants to search cloud data are properly presented to the cloud hosting provider, NOT the "owner" of the data -- in fact, the data owner is often prohibited from even knowing that the process is taking place. Others have pointed out that this is a clear way in which cloud storage is fundamentally different from local storage, which one might not expect -- being able to be secure in one's papers, a fundamental right in the US, only pertains if the papers are physically located on your person or property. I'm overextending here, but I think the physical analogy applies as well -- if the police want to search a rented storage locker, the search warrant is served to the storage company, not the lessee of the locker.
- chris_mahan 13y ago
  They should have called the FBI, the FBI would have requested a warrant, the Judge would have approved the warrant, and the FBI would have accessed the information in the user's account. That would have been the correct way to do it.
  - pktgen 13y ago
    I've upvoted you because this seems like what they should have done. I didn't think about the criminal aspect.
    - chris_mahan 13y ago
      Well, because if it wasn't a crime, then they definitely shouldn't have trawling around on his personal hotmail account.
  - andrewfong 13y ago
    That doesn't provide a remedy when you only want to launch a civil investigation, not a criminal one. And given how frequently the criminal process is abused to go after relatively minor crimes (e.g. Aaron Swartz), this is probably something we shouldn't encourage.
    - chris_mahan 13y ago
      Oh, and it's better this way?
  - kenjackson 13y ago
    I'd think wed want to minimize how often the FBI is combing through data. I'd rather MS pull up an email than the FBI get more free access to data.
    - gkoz 13y ago
      Isn't a search with a warrant the opposite of free access?
  - 13y ago
- mcintyre1994 13y ago
  It's far too idealist to be realistic, but they shouldn't be able to use that information for their own civil inquiry. If gmail or pgp were used they wouldn't have access to it, it being a Microsoft account shouldn't make its contents available to them for a private investigation. Of course it does and probably always will because they have lots of lawyers and terms of service, but I just disagree with them being able to. I agree that if they have to do this investigation (and really they're the ones that will ultimately decide that) they shouldn't get anyone else involved - especially the criminal justice system. I think what I'm trying to get at is that the conversation is turning here toward just how should Microsoft access the data they want, when it should be whether they should be able to at all. I don't like the idea that it's a given that they can take that information, and that's what should change here.
PythonicAlpha 13y ago
A bank also has no right to search a locker that you have rented from them. The bank has to have a warrant against you to search it.
- cookingrobot 13y ago
  And a landlord has no right to come into your apartment without warning, even if they think you stole something from them.
  - res0nat0r 13y ago
    Except for the T&C you signed with Hotmail when you signed up to explicitly allow them to go through your email. If you are actually stupid enough to leak trade secrets for Microsoft's premiere product, while using Hotmail to do it, well you really deserve what you get.
    - PythonicAlpha 13y ago
      I don't know, how the situation in the US is, but in my country, if a landlord would add a statement in the rental agreement, that he can search your home, such a statement would be void from the beginning! Because you can't break or bend the law just by adding a statement in a contract in my country.
      - andrewfong 13y ago
        U.S. laws usually permits landlord inspections so long as they provide notice.
        dippyskoodlez 13y ago
        That is quite different from the current scenario, and could be called a "warrant". verb 1. justify or necessitate (a certain course of action).
    - bryan_rasmussen 13y ago
duaneb 13y ago
> But can Microsoft really go to a court and say "hey judge, we're Microsoft, we want a warrant for Microsoft to provide this"? Yes. They want people to use their products, don't they? I'm not going to spend money on a product that gives me zero assurance that I have control of my information.
- kvb 13y ago
  Can you cite any precedent where a court has agreed to hear such an argument? This is not a rhetorical question - I'm genuinely curious whether civil procedure allows it. As a non-lawyer (and MSFT employee) who is interested in the law, the closest thing I can think of is a motion for declaratory judgment, but even there I think you need an actual case or controversy before the judge will hear arguments.
sytelus 13y ago
You can't be serious. Microsoft could have filed complaint against employee with law enforcement agency who then would have received warrant to search any properties that law enforcement agency deemed as required. Key here is that Microsoft is not searching itself. Content of the email account does not belong to Microsoft, it belongs to the user. To search it Microsoft needs explicit permission of user or law enforcement agency.
- e12e 13y ago
  Indeed. Consider this: you are a budding new software engineer, and you've used gmail since it came out. Now you start work at google. And now, google is entitled to search through your email? (Replace outlook.com/hotmail and microsoft, or y! mail and yahoo! etc)
lawnchair_larry 13y ago
I think they should just leave their users property alone, and act like a dumb conduit without the ability to inspect. Find other ways to solve the problem. Do what they would do if they were not in the convenient position of being the email host.
- andrewfong 13y ago
  You missed that "what they would do if they were not in the convenient position of being the email host" is subpoena the email host. Unfortunately, you can't really subpoena yourself. Nor is it clear that they could subpoena the user here and compel the user to give information to Microsoft that Microsoft already has. The EFF suggests getting the FBI involved and having them serve a court-approved warrant, but that doesn't work if you want to keep this a purely civil process and not involve the police (and given recent abuse of police powers for relatively minor crimes, getting the FBI involved is probably not something to be categorically encouraged).
mindslight 13y ago
Microsoft's actions in this case are pretty predictable, and the fact that this is a "story" at all just highlights the lowest common denominator news cycle (or alternatively the out of touch entitlement of webmail users). But just think if they had filed a civil suit and gone to court for discovery of information that they had possession of but conceivably not the right to - they could have created a nice legal precedent and ended up being lauded by the EFF!

by pktgen 13y ago

deleted 13y ago

[deleted]

sliverstorm 13y ago

Alright Microsoft, your days on the run are over. We, Microsoft, have gotten a subpoena against you. Now cough up that data, us. I mean you.

glimcat 13y ago

Ideally, I'd like to see a situation where you (1) have a contract protecting user data which is reasonably enforceable given the power dynamics which exist between the two parties, and (2) it's required for a judge to arbitrate whether a given situation provides justification to breach that contract. Where "judge" is proxy for a nominally impartial third party who nominally has the experience to make an informed decision which reasonably protects the interests of both parties, the public interest, and our stated commitments to civil liberties. And we already make routine use of judges for this function in cases where the data or other artifacts are not possessed by the party who wants extraordinary permission to access them.

crygin 13y ago

Agreed -- based on MS's statement they went through a fairly rigorous internal procedure (of course, they could be lying, but it seems fairly unlikely particularly given the regulatory attention MS generally has on it). I don't fully understand what people think they "should" have done to access the emails -- waste a court's time on a meaningless judgement?

PythonicAlpha 13y ago
No, not waste! When you act rightfully, it is never wasting time of the legal system! Because I can do something (without asking anybody else) it needs not to be right!
- ewoodrich 13y ago
  >When you act rightfully, it is never wasting time of the legal system! In this case, it really would be a waste of time. Microsoft wouldn't be seeking a subpoena, nor are they a government seeking a warrant. Microsoft would just be asking the court for permission to do something the court cannot grant. There's no legal question, unless say, someone were to sue Microsoft for accessing their data.
  - PythonicAlpha 13y ago
    I am not familiar with the US law system, but in our country it would be normal, that for example my landlord has to go to court before he can search my house, even when he is the owner. And the warrant is not against the landlord, but against me. So I disagree with your statement, at least in my country it would be not wasting anything ... but DOING THE RIGHT THING! And I would really wonder, if in the US the landlord could just search your house, because he thinks that you might have stolen something of him -- with the argument, that he does not want to "waste anybodies time"!
    - URSpider94 13y ago
      I think the problem is that we have extensive precedent in the USA that warrants to search cloud data are properly presented to the cloud hosting provider, NOT the "owner" of the data -- in fact, the data owner is often prohibited from even knowing that the process is taking place. Others have pointed out that this is a clear way in which cloud storage is fundamentally different from local storage, which one might not expect -- being able to be secure in one's papers, a fundamental right in the US, only pertains if the papers are physically located on your person or property. I'm overextending here, but I think the physical analogy applies as well -- if the police want to search a rented storage locker, the search warrant is served to the storage company, not the lessee of the locker.
chris_mahan 13y ago
They should have called the FBI, the FBI would have requested a warrant, the Judge would have approved the warrant, and the FBI would have accessed the information in the user's account. That would have been the correct way to do it.
- pktgen 13y ago
  I've upvoted you because this seems like what they should have done. I didn't think about the criminal aspect.
  - chris_mahan 13y ago
    Well, because if it wasn't a crime, then they definitely shouldn't have trawling around on his personal hotmail account.
- andrewfong 13y ago
  That doesn't provide a remedy when you only want to launch a civil investigation, not a criminal one. And given how frequently the criminal process is abused to go after relatively minor crimes (e.g. Aaron Swartz), this is probably something we shouldn't encourage.
  - chris_mahan 13y ago
    Oh, and it's better this way?
- kenjackson 13y ago
  I'd think wed want to minimize how often the FBI is combing through data. I'd rather MS pull up an email than the FBI get more free access to data.
  - gkoz 13y ago
    Isn't a search with a warrant the opposite of free access?
- 13y ago
mcintyre1994 13y ago
It's far too idealist to be realistic, but they shouldn't be able to use that information for their own civil inquiry. If gmail or pgp were used they wouldn't have access to it, it being a Microsoft account shouldn't make its contents available to them for a private investigation. Of course it does and probably always will because they have lots of lawyers and terms of service, but I just disagree with them being able to. I agree that if they have to do this investigation (and really they're the ones that will ultimately decide that) they shouldn't get anyone else involved - especially the criminal justice system. I think what I'm trying to get at is that the conversation is turning here toward just how should Microsoft access the data they want, when it should be whether they should be able to at all. I don't like the idea that it's a given that they can take that information, and that's what should change here.

PythonicAlpha 13y ago

A bank also has no right to search a locker that you have rented from them. The bank has to have a warrant against you to search it.

cookingrobot 13y ago
And a landlord has no right to come into your apartment without warning, even if they think you stole something from them.
- res0nat0r 13y ago
  Except for the T&C you signed with Hotmail when you signed up to explicitly allow them to go through your email. If you are actually stupid enough to leak trade secrets for Microsoft's premiere product, while using Hotmail to do it, well you really deserve what you get.
  - PythonicAlpha 13y ago
    I don't know, how the situation in the US is, but in my country, if a landlord would add a statement in the rental agreement, that he can search your home, such a statement would be void from the beginning! Because you can't break or bend the law just by adding a statement in a contract in my country.
    - andrewfong 13y ago
      U.S. laws usually permits landlord inspections so long as they provide notice.
      - dippyskoodlez 13y ago
        That is quite different from the current scenario, and could be called a "warrant". verb 1. justify or necessitate (a certain course of action).
  - bryan_rasmussen 13y ago

duaneb 13y ago

> But can Microsoft really go to a court and say "hey judge, we're Microsoft, we want a warrant for Microsoft to provide this"? Yes. They want people to use their products, don't they? I'm not going to spend money on a product that gives me zero assurance that I have control of my information.

kvb 13y ago
Can you cite any precedent where a court has agreed to hear such an argument? This is not a rhetorical question - I'm genuinely curious whether civil procedure allows it. As a non-lawyer (and MSFT employee) who is interested in the law, the closest thing I can think of is a motion for declaratory judgment, but even there I think you need an actual case or controversy before the judge will hear arguments.

sytelus 13y ago

You can't be serious. Microsoft could have filed complaint against employee with law enforcement agency who then would have received warrant to search any properties that law enforcement agency deemed as required. Key here is that Microsoft is not searching itself. Content of the email account does not belong to Microsoft, it belongs to the user. To search it Microsoft needs explicit permission of user or law enforcement agency.

e12e 13y ago
Indeed. Consider this: you are a budding new software engineer, and you've used gmail since it came out. Now you start work at google. And now, google is entitled to search through your email? (Replace outlook.com/hotmail and microsoft, or y! mail and yahoo! etc)

lawnchair_larry 13y ago

I think they should just leave their users property alone, and act like a dumb conduit without the ability to inspect. Find other ways to solve the problem. Do what they would do if they were not in the convenient position of being the email host.

andrewfong 13y ago
You missed that "what they would do if they were not in the convenient position of being the email host" is subpoena the email host. Unfortunately, you can't really subpoena yourself. Nor is it clear that they could subpoena the user here and compel the user to give information to Microsoft that Microsoft already has. The EFF suggests getting the FBI involved and having them serve a court-approved warrant, but that doesn't work if you want to keep this a purely civil process and not involve the police (and given recent abuse of police powers for relatively minor crimes, getting the FBI involved is probably not something to be categorically encouraged).

mindslight 13y ago

Microsoft's actions in this case are pretty predictable, and the fact that this is a "story" at all just highlights the lowest common denominator news cycle (or alternatively the out of touch entitlement of webmail users). But just think if they had filed a civil suit and gone to court for discovery of information that they had possession of but conceivably not the right to - they could have created a nice legal precedent and ended up being lauded by the EFF!