7 ms·

Microsoft Defies Court Order, Will Not Give Emails to US Government

385 points by xamlhacker 12y ago

mercurial 12y ago
> Despite a federal court order directing Microsoft to turn overseas-held email data to federal authorities, the software giant said Friday it will continue to withhold that information as it waits for the case to wind through the appeals process. The judge has now ordered both Microsoft and federal prosecutors to advise her how to proceed by next Friday, September 5. > Let there be no doubt that Microsoft's actions in this controversial case are customer-centric. The firm isn't just standing up to the US government on moral principles. It's now defying a federal court order. Whoever wrote this clearly didn't bother wondering if, just maybe, handing out customer data "overseas" ("overseas" apparently means Ireland) would be illegal under EU and Irish law. But let's not minor details like this get in the way of good PR.
- jkestner 12y ago
  Assigning noble motives to Microsoft's actions is ignoring the actual motives of a business. How do those same people explain why Microsoft has given the US government user information on other occasions? It's just a calculation of what's the best thing to do for the well-being of the business. Just as banks happily take a "record fine" for breaking the law because it's a small expense to making a lot of money. We get in so much trouble trying to understand companies as if they're individual humans. Evolutionary biology for corporations needs to be taught.
  - mercurial 12y ago
    I absolutely agree. On the other hand, the fact that ethics rarely seem to play any role in decision-making at large-scale organization is pretty telling about the sort of people who rise up to the top :(
- recalibrator 12y ago
  Mercurial has the most clear-headed read on the situation. His comment should be upvoted to the top. As for Microsoft, they have demonstrated time and time again they are not aligned with the user but with Big Brother. They are lawful evil, to use D&D parlance.
- AndyNemmity 12y ago
  It is illegal, but it also means you'd have no foreign customers. They would lose tons of contracts immediately. It would completely end the enterprise cloud revolution that is occurring.
  - jpatel3 12y ago
    Absolutely. They don't realize they will hurt the other companies this way. There are companies and institutes follow this thing very closely and when you try to close the sell with them, they would drop this Bomb, where are your servers and how they are not feeling comfortable with all this things going on.
edoceo 12y ago
+1 to MS!
ryanburk 12y ago
if the ruling is upheld, web services that face legal discovery like google, dropbox, facebook, microsoft, etc will face an amazing burden of data retention cost. there is an amazing tax already on these services having to implement per government specific retention policies based on where they do business. for example in ireland, by law you need to be able to produce up to a year of content even if an account has been deleted. in the u.s. the period is much shorter. so if other countries create similar legislation after seeing a u.s. version of this law stick, everyone will have to implement a myriad of retention policies, or worst case retention, in every datacenter they operate. it drives up cost and complexity in the services. this might not be popular to say, but microsoft taking a stand here is an amazingly good thing for our industry.
- tracker1 12y ago
  That said, I don't think this has much to do with protecting MS's customers, or for that matter standing up for them as it is presented. I'm pretty sure it's more about MS operations being able to continue to run in Ireland and the rest of the EU. If MS hands this data over, you can be assured that MS would face stiff penalties and restrictions to even be able to operate in the EU, and would likely have their Azure facilities shut down as a result. MS is stuck between a rock and a hard place here, no doubt, and I think it's important for this stand to be made. Hopefully sanity will prevail here... I don't think the U.S. government would appreciate if Google were forced to turn over the Google Apps data of scientific universities to China because of a court order there.
  - Irish 12y ago
    I don't think the foreign country would care unless it was data that was owned or related to an entity in that country. Its an american owned and operated data center in Irelend (where I live). Presumably the email is 'owned' by an american and the case involves all american actors(cant really make that assumption I guess) so there dosn't seem to be anything to spark the interest of the Irish legislature. Unless you make the leap to the point that now america can just demand ALL the data in that data center which you certainly could. This isn't really the same as a warrant either is it? They are not demanding to be allowed access to or to search the data center. Microsoft in America is being ordered to hand over a document that they have access to, where that document is seems irrelevant (just playing devils advocate). Also the chances of any small to medium sized nation (particularly Ireland) getting on their high horses about this is quite unlikely due to the amount of money these large multi-nationals bring here. In fact if this is upheld I imagine it would be another boon for Ireland as the american companies will have to set up even more infrastructure so that they can argue that its a completely separate entity that they simply funnel customers to or whatever. If the companies act first they could even get favorable Irish legislation passed to prevent the type of treaty talked about in the article (although this would be a pretty ballsy move for Ireland)
jnbiche 12y ago
The casualness with which the U.S. Government asks a private company to violate EU and Irish law is truly disturbing. The U.S. Gov has gone mad with power. And for perhaps the first time ever: bravo Microsoft! I don't even care if you did if for the PR, it's still a brave stand.
- curiousDog 12y ago
  Indeed. And I'm surprised the European governments are just taking it.
  - mercurial 12y ago
    There is the Data Protection Law, which makes, as far as I understand, transferring data to the US as ordered by the judge illegal. That said, why would you be surprised that the same governments happily collaborating with the NSA wouldn't do anything about privacy? We're pretty lucky as it is to have a privacy protection law at all.
  - toyg 12y ago
    That's incorrect. European governments are "just taking it" when it comes to some areas; in particular anything to do with security is left to the US to do as they please, because they bear the brunt of our defensive needs (something that is not going change anytime soon); and multinational companies are powerful because of their money, regardless of where they come from. In this case, EU data-privacy laws emerged as a way to harmonize EU trade and law enforcement practices. They were then made compatible with US laws through various international agreements and treaties. Things were working, more or less. Then the US Congress passed the PATRIOT Act in haste, and broke everything. It took years to sketch out a way to make these incompatible laws work together, sort of. Grey areas were swept under the carpet, in hope that particular circumstances they covered "would never happen". Now they are happening, due to a combination of factors (the emergence of cloud computing, NSA revelations, differences in foreign policy stances, etc). Until Microsoft keeps this stance and the US legal landscape allows them to, EU governments simply don't have to do anything - the Data Protection Directive holds, US law enforcement yields. If MS is actually forced to hand over the data, then a response will be required from our side of the pond.
hartator 12y ago
maybe I am some kind of sheep but this kind of stand makes me strongly consider again Microsoft as a platform of choice against Apple. Bravo Microsoft.
- vermontdevil 12y ago
  I don't see Apple mentioned in this article so why "against Apple" ? But then again even Microsoft has been complicit with PRISM along with Apple and many other Silicon Valley companies. (Yes I know Microsoft is not Silicon Valley)
- silencio 12y ago
  Not to be an Apple apologist, but do we know if Apple's faced a case like this? Or other companies? It's not like Microsoft chose to be targeted here. My guess is that this is so insanely overreaching that the major industry players would have done the same as MS if they were the ones hosting this one Irish email account in question. Plus, Apple and others have filed briefs in support of MS and have been lobbying against what's been going on. I personally would have enjoyed listening to more of Tim Cook on this topic if Apple and MS swapped places. Earlier this year, he said the USG needed to cart employees out in a box before they can get access to Apple servers. Interesting quote for sure.
okasaki 12y ago
They give it to the NSA, and the NSA shares it with other govt. bodies through that search engine (and probably a dozen other ways). Anyway, it always freaks me out a bit when people cheer a megacorp like MS. They're not fighting for you, they're fighting for your perception of them. The faster you cheer, the less they'll do.
- pyre 12y ago
  At the same time, if they find that people are indifferent to actions like this, maybe they'll feel that it isn't worth their while.
notastartup 12y ago
Good job for Microsoft being the first to stand up against a surveillance government. If only everyone else was brave enough to follow, we would see change.
- jqm 12y ago
  I wouldn't say they are the first.... And that is assuming this is more than a choreographed piece of theater attempting to restore trust in US cloud services. Which maybe it is. And.... maybe it isn't.
- nabla9 12y ago
  This is not move against government mass surveillance (collecting intelligence). This is criminal case and the question is the limits of legal discovery.
niels_olson 12y ago
Watch my left hand waving while my right fist delivers a body blow.
serve_yay 12y ago
Not that I don't respect the decision, but something tells me that we would be less happy, in other instances, to see giant companies like MS decide when the law should apply to them.
- CamperBob2 12y ago
  Not only that, but the idea that a US person or company can dodge a court order just by transferring the data in question (or a physical object such as a server, or an item of disputed ownership) to another country seems totally unsupportable. I don't see how the judge has erred by issuing this order and expecting it to be followed. As I see it, the judge had no choice but to issue the order, and Microsoft has no rational alternative but to defy it if they want to conduct business as an international provider of cloud services. The real problem is with Congress, not the courts. When they permitted intelligence agencies to run amok with absolutely no Constitutional boundaries, they thought very little about the long term consequences and cared even less.
  - pjc50 12y ago
    transferring I don't see any claim that it was ever in the US.
    - CamperBob2 12y ago
      I'm not convinced it matters. Should Microsoft Ireland be allowed to print their own US currency, for example, as long as they never bring any of it into the US?
  - toyg 12y ago
    > When they permitted intelligence agencies to run amok [...] they thought very little about the long term consequences I don't think intelligence agencies are involved here at all. In fact, them "running amok" would be easier in this case: they would have those emails already, process be damned. In truth, this particular process would have happened at one point or another regardless of intelligence services, it's just a function of global internet services existing and laws having emerged to deal with them. Back before EU privacy laws were introduced, Microsoft would have just handed out anything they had to the FBI without really a second thought. Now they have to comply with two conflicting sets of laws. It's not just a problem with the US Congress: it's a transatlantic (or rather global) conflict between incompatible laws. It's like France had a law prohibiting a company from selling widgets at price X worldwide, and the US had a law forcing them to sell the same widgets at price X worldwide: you just couldn't obey both laws, since they both claim the same jurisdiction while mandating conflicting behaviour. You would need an international treaty to harmonize this, or one country to drop their law.
burgers 12y ago
> Judge Preska of course feels differently, and she has consistently agreed with the prosecution argument that the physical location of email is irrelevant because Microsoft controls the data from its base in the United States. I find this bit very interesting. As opposed to Microsoft being a US company, it is that it's operations are located in the US. I wonder what effects this decision could have on the US labor market if companies relocate operations in the same way they relocate certain things for tax avoidance.
- toyg 12y ago
  > if companies relocate operations in the same way they relocate certain things for tax avoidance. They already do. Umpteen companies run servers in this or that country for specific legal reason which are not necessarily related to taxation. Classic case: companies with dubious stands in regard to copyright law. The PATRIOT Act already forced a number of companies to open European datacentres to satisfy particularly-picky customers; it's just that this particular threat was considered mostly theoretical... until Edward Snowden proved the opposite. Now all cloud-services providers must prove their virginity or risk losing sizeable chunks of lucrative European markets, hence why Microsoft is making a stand (on this case, at least). I do applaud them: if anything, once this process is over, we'll have a clearer picture of what exactly the US government can or cannot ask from US-based cloud companies. We're currently in a fog where the law says certain things but practical experience says another. A realignment in one way or the other would be most welcome.
  - AndyNemmity 12y ago
    >The PATRIOT Act already forced a number of companies to open European datacentres to satisfy particularly-picky customers; It's not picky customers, it's everyone. It's literally the first discussion that occurs. Any company in any part of the world wants their data in a datacenter near them, that follows rules they are comfortable with. It cannot be overstated just how important this issue is to foreign companies.
    - TazeTSchnitzel 12y ago
venomsnake 12y ago
I have a feeling that USG already have the data they need and are just running "parallel discovery/whitewashing" here. Still it is nice to see MS take a stand.
- jqm 12y ago
  or at least "appear" to take a stand...
hellbanner 12y ago
This is because the USG already has backdoors, right?
mnglkhn2 12y ago
Maybe I've missed it, but is data requested belonging to a US or non-US resident?
- icebraining 12y ago
  That wasn't released.
aikah 12y ago
Impressive move by Microsoft, frankly i'm more enclined to use MS cloud services,if they challenge US court orders on a regular basis. do some people know what they risk?
jrapdx3 12y ago
This case may be the leading edge of a huge wave with a global sweep. The sticky point may be that the locality of data is impermanent and ambiguous. In the MS case, though the data is said to be stored on a server in Ireland, it could just as well be distributed, moved or duplicated anywhere, and for all we know it already has been. Eventually laws will have to come to terms with the implications of the Internet: data, like a flock of migratory birds, for its own reasons goes one place to another and knows nothing about national boundaries.
- yutah 12y ago
  one global country would probably fix that... or I guess you could end the Internet... but to tell you the truth, "cloud computing" needs to end instead.
  - jrapdx3 12y ago
    I think it's going to be very hard for countries to work out how to deal with the issues. Pretty sure the Internet is going to continue to exist and provoke questions about what "national boundaries" mean in this context. Predictions are dangerous, but probably the forecast for the future is that it will be even more "cloudy", whether we like it or not. Of course, can't do much about the weather anyway...
  - toyg 12y ago
    > one global country would probably fix that This is a joke only up to a point. The current legal landscape emerged throughout the last few centuries mostly in response to commercial pressures: as commerce grew in range, volume and needs, so did laws, agreements and conflicts. We now have a situation where global commerce is real, both in a physical and logical sense. The law, both at national and international level, just doesn't know how to deal with it. Companies design hardware in Massachusetts, produce it in China, sell it in Europe, and file their accounts in Caribbean islands. They develop software in Romania, run it on servers in Texas, sell it to the Brazilian market, support it from India, and file accounts in Luxembourg. This stuff could only be done by a handful of players back in the '70s, and we could deal with it on ad-hoc basis ("dude, we know your money is in Switzerland, just open a token factory in my constituency and we'll call it even"). Now it's just how business works everywhere, and we need real processes to scale up. What rules can be defined and applied? How are they going to be enforced? Who is responsible for amending them? These big questions are the real challenge of this century for us "First World", and some harmonization will eventually have to emerge one way or the other.
yutah 12y ago
So I guess the US government is not logging everything yet... so this is 2 good news.
- toyg 12y ago
  "The US government" is not a monolithic entity. Certain departments (e.g. NSA) might "log everything" already, they just don't (or can't) share it openly with other departments yet -- if anything, because revealing such capability is damaging in itself.
  - yutah 12y ago
    If I understand correctly, from some news I read [1], they are already sharing information with at least the DEA and the IRS. The DEA and the IRS were told to cover up the source of that information by coming up with their own independent leads to recreate the information obtained ("Parallel construction" is really intelligence laundering). [1] https://www.eff.org/deeplinks/2013/08/dea-and-nsa-team-intelligence-laundering https://www.eff.org/deeplinks/2013/08/dea-and-nsa-team-intel...
jrochkind1 12y ago
Thank you, Edward Snowden.
wfunction 12y ago
Am I the only one who's worried this may make the government less careful about giving orders in the future? (i.e. won't they figure "hey, let's just give the order; if they disagree then they'll defy it"?)
thrownaway2424 12y ago
This is interesting but let's give the cheer leading a break. What were really talking about here is corporations testing the size of their stick versus the government's. The feds are pursuing a USA case against and american entity and the data in question is held by another american entity, which happens to have moved it to Ireland. Well why did they do that and when? Was is always there and will it always be there? In what country is the data chiefly accessed? If it is sent and received by Americans exclusively then perhaps the place where it is nominally stored might not even matter. In that case the place of storage would be just the kind of corporate fiction that courts are happy to pierce. What if the data is striped among all the countries where Microsoft has datacenters? Do you get the union of all possible data protections? Or the intersection? There are actual legal questions here and Microsoft's position is not neutrally good.
- icebraining 12y ago
  The feds are pursuing a USA case against and american entity Are they? Where did you read that? As far as I know, the nationality of the Microsoft customer hasn't been released.
simonblack 12y ago
I cancelled my Dropbox subscription several years ago for precisely this sort of situation. Not that any of my files are particularly wonderful, but the point being that I would no longer have control over other people having any and all access to them. Microsoft will eventually roll over.
spydum 12y ago
So, I wonder if Microsoft wins this appeal, how practical would it be to stripe encrypted data across data centers in 2+ countries. The idea being that to obtain the data stored, would require legal authorization in each country?
- belovedeagle 12y ago
  A possible argument by the feds comes to mind: recall that in Lavabit, they argued that access to the SSL keys was a "necessary" part of implementing the court order. In such a case as you describe they'll just pull the same trick.
mindvirus 12y ago
This raises the question: if the judge's option ends up being held, would any non-US based company buy services from a US company?
jburwell 12y ago
I can't believe I am actually saying this -- "Go Microsoft!". For once, they are on the right side.
zmmmmm 12y ago
It's a very confusing article, I must say. On the one hand it seems to imply Microsoft is defying the law on behalf of its customers. If that is the case MS is in contempt of court and presumably the board of directors and other executives could face criminal sanctions. However there's certainly no mention of that and in other parts of the article it sounds like this is just one more round in an ongoing legal case ... > The removal of the suspension legally requires Microsoft to hand over the email immediately vs > The judge has now ordered both Microsoft and federal prosecutors to advise her how to proceed by next Friday, September 5 Paul Thurrott is of course a relentlessly pro-Microsoft writer, and I can't help but get the feeling he's trying to take advantage of strategic ambiguity to put out a positive story here. I will stay tuned to see if indeed there is some kind of punishment meted out to Miscrosoft - otherwise my assumption would be that this is much less of a story than it sounds.
- diafygi 12y ago
  Huh, it does appear that officers are the ones who are locked up in the event that a corporation is held in contempt[1]. Which brings up another question. Instead of proposing that the officers be held in contempt, could the judge instead rule that the corporate charter get suspended? It seems like that would be more analogous to imprisoning a "person". [1] - http://www.millerjohnson.com/pubs/xprPubDetail.aspx?xpST=PubDetail&pub=1546 http://www.millerjohnson.com/pubs/xprPubDetail.aspx?xpST=Pub...
rdxm 12y ago
Here's the 64k dollar question. If Snowden hadn't dropped the dime on the douchebaggery going on not just at NSA, but also w.r.t. the complicity/cooperation by all the biggies(Google, FB, MS, etc), would MS be doing this? I assert that the answer is clearly a big No....anyone else agree with me??
- jpatel3 12y ago
  I guess we don't know, statistically answer might be No. But whats your point?
moogoo 12y ago
MS is playing a game here. There is no sovereignty issue involved at all since the emails in question are readily accessible by MS stateside. The question is one of access. MS is playing the locality card because they want to make the court order apply to a physical data center in Ireland when it does not...unless MS wants it to. Its fairly common when there are orders for data or code to be turned over for companies to play cat and mouse with access issues. For example, when being forced to turn over code printing the code out in a tiny illegible font and putting the reams of paper on a truck and delivering it that way. (Its been done many times) Even if MS prevails this is not good for the internet. If big companies resort to storing data overseas this will be toxic for US based cloud services.

385 points by xamlhacker 12y ago

> Despite a federal court order directing Microsoft to turn overseas-held email data to federal authorities, the software giant said Friday it will continue to withhold that information as it waits for the case to wind through the appeals process. The judge has now ordered both Microsoft and federal prosecutors to advise her how to proceed by next Friday, September 5. > Let there be no doubt that Microsoft's actions in this controversial case are customer-centric. The firm isn't just standing up to the US government on moral principles. It's now defying a federal court order. Whoever wrote this clearly didn't bother wondering if, just maybe, handing out customer data "overseas" ("overseas" apparently means Ireland) would be illegal under EU and Irish law. But let's not minor details like this get in the way of good PR.

jkestner 12y ago
Assigning noble motives to Microsoft's actions is ignoring the actual motives of a business. How do those same people explain why Microsoft has given the US government user information on other occasions? It's just a calculation of what's the best thing to do for the well-being of the business. Just as banks happily take a "record fine" for breaking the law because it's a small expense to making a lot of money. We get in so much trouble trying to understand companies as if they're individual humans. Evolutionary biology for corporations needs to be taught.
- mercurial 12y ago
  I absolutely agree. On the other hand, the fact that ethics rarely seem to play any role in decision-making at large-scale organization is pretty telling about the sort of people who rise up to the top :(
recalibrator 12y ago
Mercurial has the most clear-headed read on the situation. His comment should be upvoted to the top. As for Microsoft, they have demonstrated time and time again they are not aligned with the user but with Big Brother. They are lawful evil, to use D&D parlance.
AndyNemmity 12y ago
It is illegal, but it also means you'd have no foreign customers. They would lose tons of contracts immediately. It would completely end the enterprise cloud revolution that is occurring.
- jpatel3 12y ago
  Absolutely. They don't realize they will hurt the other companies this way. There are companies and institutes follow this thing very closely and when you try to close the sell with them, they would drop this Bomb, where are your servers and how they are not feeling comfortable with all this things going on.

edoceo 12y ago

+1 to MS!

ryanburk 12y ago

if the ruling is upheld, web services that face legal discovery like google, dropbox, facebook, microsoft, etc will face an amazing burden of data retention cost. there is an amazing tax already on these services having to implement per government specific retention policies based on where they do business. for example in ireland, by law you need to be able to produce up to a year of content even if an account has been deleted. in the u.s. the period is much shorter. so if other countries create similar legislation after seeing a u.s. version of this law stick, everyone will have to implement a myriad of retention policies, or worst case retention, in every datacenter they operate. it drives up cost and complexity in the services. this might not be popular to say, but microsoft taking a stand here is an amazingly good thing for our industry.

tracker1 12y ago
That said, I don't think this has much to do with protecting MS's customers, or for that matter standing up for them as it is presented. I'm pretty sure it's more about MS operations being able to continue to run in Ireland and the rest of the EU. If MS hands this data over, you can be assured that MS would face stiff penalties and restrictions to even be able to operate in the EU, and would likely have their Azure facilities shut down as a result. MS is stuck between a rock and a hard place here, no doubt, and I think it's important for this stand to be made. Hopefully sanity will prevail here... I don't think the U.S. government would appreciate if Google were forced to turn over the Google Apps data of scientific universities to China because of a court order there.
- Irish 12y ago
  I don't think the foreign country would care unless it was data that was owned or related to an entity in that country. Its an american owned and operated data center in Irelend (where I live). Presumably the email is 'owned' by an american and the case involves all american actors(cant really make that assumption I guess) so there dosn't seem to be anything to spark the interest of the Irish legislature. Unless you make the leap to the point that now america can just demand ALL the data in that data center which you certainly could. This isn't really the same as a warrant either is it? They are not demanding to be allowed access to or to search the data center. Microsoft in America is being ordered to hand over a document that they have access to, where that document is seems irrelevant (just playing devils advocate). Also the chances of any small to medium sized nation (particularly Ireland) getting on their high horses about this is quite unlikely due to the amount of money these large multi-nationals bring here. In fact if this is upheld I imagine it would be another boon for Ireland as the american companies will have to set up even more infrastructure so that they can argue that its a completely separate entity that they simply funnel customers to or whatever. If the companies act first they could even get favorable Irish legislation passed to prevent the type of treaty talked about in the article (although this would be a pretty ballsy move for Ireland)

jnbiche 12y ago

The casualness with which the U.S. Government asks a private company to violate EU and Irish law is truly disturbing. The U.S. Gov has gone mad with power. And for perhaps the first time ever: bravo Microsoft! I don't even care if you did if for the PR, it's still a brave stand.

curiousDog 12y ago
Indeed. And I'm surprised the European governments are just taking it.
- mercurial 12y ago
  There is the Data Protection Law, which makes, as far as I understand, transferring data to the US as ordered by the judge illegal. That said, why would you be surprised that the same governments happily collaborating with the NSA wouldn't do anything about privacy? We're pretty lucky as it is to have a privacy protection law at all.
- toyg 12y ago
  That's incorrect. European governments are "just taking it" when it comes to some areas; in particular anything to do with security is left to the US to do as they please, because they bear the brunt of our defensive needs (something that is not going change anytime soon); and multinational companies are powerful because of their money, regardless of where they come from. In this case, EU data-privacy laws emerged as a way to harmonize EU trade and law enforcement practices. They were then made compatible with US laws through various international agreements and treaties. Things were working, more or less. Then the US Congress passed the PATRIOT Act in haste, and broke everything. It took years to sketch out a way to make these incompatible laws work together, sort of. Grey areas were swept under the carpet, in hope that particular circumstances they covered "would never happen". Now they are happening, due to a combination of factors (the emergence of cloud computing, NSA revelations, differences in foreign policy stances, etc). Until Microsoft keeps this stance and the US legal landscape allows them to, EU governments simply don't have to do anything - the Data Protection Directive holds, US law enforcement yields. If MS is actually forced to hand over the data, then a response will be required from our side of the pond.

hartator 12y ago

maybe I am some kind of sheep but this kind of stand makes me strongly consider again Microsoft as a platform of choice against Apple. Bravo Microsoft.

vermontdevil 12y ago
I don't see Apple mentioned in this article so why "against Apple" ? But then again even Microsoft has been complicit with PRISM along with Apple and many other Silicon Valley companies. (Yes I know Microsoft is not Silicon Valley)
silencio 12y ago
Not to be an Apple apologist, but do we know if Apple's faced a case like this? Or other companies? It's not like Microsoft chose to be targeted here. My guess is that this is so insanely overreaching that the major industry players would have done the same as MS if they were the ones hosting this one Irish email account in question. Plus, Apple and others have filed briefs in support of MS and have been lobbying against what's been going on. I personally would have enjoyed listening to more of Tim Cook on this topic if Apple and MS swapped places. Earlier this year, he said the USG needed to cart employees out in a box before they can get access to Apple servers. Interesting quote for sure.

okasaki 12y ago

They give it to the NSA, and the NSA shares it with other govt. bodies through that search engine (and probably a dozen other ways). Anyway, it always freaks me out a bit when people cheer a megacorp like MS. They're not fighting for you, they're fighting for your perception of them. The faster you cheer, the less they'll do.

pyre 12y ago
At the same time, if they find that people are indifferent to actions like this, maybe they'll feel that it isn't worth their while.

notastartup 12y ago

Good job for Microsoft being the first to stand up against a surveillance government. If only everyone else was brave enough to follow, we would see change.

jqm 12y ago
I wouldn't say they are the first.... And that is assuming this is more than a choreographed piece of theater attempting to restore trust in US cloud services. Which maybe it is. And.... maybe it isn't.
nabla9 12y ago
This is not move against government mass surveillance (collecting intelligence). This is criminal case and the question is the limits of legal discovery.

niels_olson 12y ago

Watch my left hand waving while my right fist delivers a body blow.

serve_yay 12y ago

Not that I don't respect the decision, but something tells me that we would be less happy, in other instances, to see giant companies like MS decide when the law should apply to them.

CamperBob2 12y ago
Not only that, but the idea that a US person or company can dodge a court order just by transferring the data in question (or a physical object such as a server, or an item of disputed ownership) to another country seems totally unsupportable. I don't see how the judge has erred by issuing this order and expecting it to be followed. As I see it, the judge had no choice but to issue the order, and Microsoft has no rational alternative but to defy it if they want to conduct business as an international provider of cloud services. The real problem is with Congress, not the courts. When they permitted intelligence agencies to run amok with absolutely no Constitutional boundaries, they thought very little about the long term consequences and cared even less.
- pjc50 12y ago
  transferring I don't see any claim that it was ever in the US.
  - CamperBob2 12y ago
    I'm not convinced it matters. Should Microsoft Ireland be allowed to print their own US currency, for example, as long as they never bring any of it into the US?
- toyg 12y ago
  > When they permitted intelligence agencies to run amok [...] they thought very little about the long term consequences I don't think intelligence agencies are involved here at all. In fact, them "running amok" would be easier in this case: they would have those emails already, process be damned. In truth, this particular process would have happened at one point or another regardless of intelligence services, it's just a function of global internet services existing and laws having emerged to deal with them. Back before EU privacy laws were introduced, Microsoft would have just handed out anything they had to the FBI without really a second thought. Now they have to comply with two conflicting sets of laws. It's not just a problem with the US Congress: it's a transatlantic (or rather global) conflict between incompatible laws. It's like France had a law prohibiting a company from selling widgets at price X worldwide, and the US had a law forcing them to sell the same widgets at price X worldwide: you just couldn't obey both laws, since they both claim the same jurisdiction while mandating conflicting behaviour. You would need an international treaty to harmonize this, or one country to drop their law.

burgers 12y ago

> Judge Preska of course feels differently, and she has consistently agreed with the prosecution argument that the physical location of email is irrelevant because Microsoft controls the data from its base in the United States. I find this bit very interesting. As opposed to Microsoft being a US company, it is that it's operations are located in the US. I wonder what effects this decision could have on the US labor market if companies relocate operations in the same way they relocate certain things for tax avoidance.

toyg 12y ago
> if companies relocate operations in the same way they relocate certain things for tax avoidance. They already do. Umpteen companies run servers in this or that country for specific legal reason which are not necessarily related to taxation. Classic case: companies with dubious stands in regard to copyright law. The PATRIOT Act already forced a number of companies to open European datacentres to satisfy particularly-picky customers; it's just that this particular threat was considered mostly theoretical... until Edward Snowden proved the opposite. Now all cloud-services providers must prove their virginity or risk losing sizeable chunks of lucrative European markets, hence why Microsoft is making a stand (on this case, at least). I do applaud them: if anything, once this process is over, we'll have a clearer picture of what exactly the US government can or cannot ask from US-based cloud companies. We're currently in a fog where the law says certain things but practical experience says another. A realignment in one way or the other would be most welcome.
- AndyNemmity 12y ago
  >The PATRIOT Act already forced a number of companies to open European datacentres to satisfy particularly-picky customers; It's not picky customers, it's everyone. It's literally the first discussion that occurs. Any company in any part of the world wants their data in a datacenter near them, that follows rules they are comfortable with. It cannot be overstated just how important this issue is to foreign companies.
  - TazeTSchnitzel 12y ago

venomsnake 12y ago

I have a feeling that USG already have the data they need and are just running "parallel discovery/whitewashing" here. Still it is nice to see MS take a stand.

jqm 12y ago
or at least "appear" to take a stand...

hellbanner 12y ago

This is because the USG already has backdoors, right?

mnglkhn2 12y ago

Maybe I've missed it, but is data requested belonging to a US or non-US resident?

icebraining 12y ago
That wasn't released.

aikah 12y ago

Impressive move by Microsoft, frankly i'm more enclined to use MS cloud services,if they challenge US court orders on a regular basis. do some people know what they risk?

jrapdx3 12y ago

This case may be the leading edge of a huge wave with a global sweep. The sticky point may be that the locality of data is impermanent and ambiguous. In the MS case, though the data is said to be stored on a server in Ireland, it could just as well be distributed, moved or duplicated anywhere, and for all we know it already has been. Eventually laws will have to come to terms with the implications of the Internet: data, like a flock of migratory birds, for its own reasons goes one place to another and knows nothing about national boundaries.

yutah 12y ago
one global country would probably fix that... or I guess you could end the Internet... but to tell you the truth, "cloud computing" needs to end instead.
- jrapdx3 12y ago
  I think it's going to be very hard for countries to work out how to deal with the issues. Pretty sure the Internet is going to continue to exist and provoke questions about what "national boundaries" mean in this context. Predictions are dangerous, but probably the forecast for the future is that it will be even more "cloudy", whether we like it or not. Of course, can't do much about the weather anyway...
- toyg 12y ago
  > one global country would probably fix that This is a joke only up to a point. The current legal landscape emerged throughout the last few centuries mostly in response to commercial pressures: as commerce grew in range, volume and needs, so did laws, agreements and conflicts. We now have a situation where global commerce is real, both in a physical and logical sense. The law, both at national and international level, just doesn't know how to deal with it. Companies design hardware in Massachusetts, produce it in China, sell it in Europe, and file their accounts in Caribbean islands. They develop software in Romania, run it on servers in Texas, sell it to the Brazilian market, support it from India, and file accounts in Luxembourg. This stuff could only be done by a handful of players back in the '70s, and we could deal with it on ad-hoc basis ("dude, we know your money is in Switzerland, just open a token factory in my constituency and we'll call it even"). Now it's just how business works everywhere, and we need real processes to scale up. What rules can be defined and applied? How are they going to be enforced? Who is responsible for amending them? These big questions are the real challenge of this century for us "First World", and some harmonization will eventually have to emerge one way or the other.

yutah 12y ago

So I guess the US government is not logging everything yet... so this is 2 good news.

toyg 12y ago
"The US government" is not a monolithic entity. Certain departments (e.g. NSA) might "log everything" already, they just don't (or can't) share it openly with other departments yet -- if anything, because revealing such capability is damaging in itself.
- yutah 12y ago
  If I understand correctly, from some news I read [1], they are already sharing information with at least the DEA and the IRS. The DEA and the IRS were told to cover up the source of that information by coming up with their own independent leads to recreate the information obtained ("Parallel construction" is really intelligence laundering). [1] https://www.eff.org/deeplinks/2013/08/dea-and-nsa-team-intelligence-laundering https://www.eff.org/deeplinks/2013/08/dea-and-nsa-team-intel...

jrochkind1 12y ago

Thank you, Edward Snowden.

wfunction 12y ago

Am I the only one who's worried this may make the government less careful about giving orders in the future? (i.e. won't they figure "hey, let's just give the order; if they disagree then they'll defy it"?)

thrownaway2424 12y ago

This is interesting but let's give the cheer leading a break. What were really talking about here is corporations testing the size of their stick versus the government's. The feds are pursuing a USA case against and american entity and the data in question is held by another american entity, which happens to have moved it to Ireland. Well why did they do that and when? Was is always there and will it always be there? In what country is the data chiefly accessed? If it is sent and received by Americans exclusively then perhaps the place where it is nominally stored might not even matter. In that case the place of storage would be just the kind of corporate fiction that courts are happy to pierce. What if the data is striped among all the countries where Microsoft has datacenters? Do you get the union of all possible data protections? Or the intersection? There are actual legal questions here and Microsoft's position is not neutrally good.

icebraining 12y ago
The feds are pursuing a USA case against and american entity Are they? Where did you read that? As far as I know, the nationality of the Microsoft customer hasn't been released.

simonblack 12y ago

I cancelled my Dropbox subscription several years ago for precisely this sort of situation. Not that any of my files are particularly wonderful, but the point being that I would no longer have control over other people having any and all access to them. Microsoft will eventually roll over.

spydum 12y ago

So, I wonder if Microsoft wins this appeal, how practical would it be to stripe encrypted data across data centers in 2+ countries. The idea being that to obtain the data stored, would require legal authorization in each country?

belovedeagle 12y ago
A possible argument by the feds comes to mind: recall that in Lavabit, they argued that access to the SSL keys was a "necessary" part of implementing the court order. In such a case as you describe they'll just pull the same trick.

mindvirus 12y ago

This raises the question: if the judge's option ends up being held, would any non-US based company buy services from a US company?

jburwell 12y ago

I can't believe I am actually saying this -- "Go Microsoft!". For once, they are on the right side.

zmmmmm 12y ago

It's a very confusing article, I must say. On the one hand it seems to imply Microsoft is defying the law on behalf of its customers. If that is the case MS is in contempt of court and presumably the board of directors and other executives could face criminal sanctions. However there's certainly no mention of that and in other parts of the article it sounds like this is just one more round in an ongoing legal case ... > The removal of the suspension legally requires Microsoft to hand over the email immediately vs > The judge has now ordered both Microsoft and federal prosecutors to advise her how to proceed by next Friday, September 5 Paul Thurrott is of course a relentlessly pro-Microsoft writer, and I can't help but get the feeling he's trying to take advantage of strategic ambiguity to put out a positive story here. I will stay tuned to see if indeed there is some kind of punishment meted out to Miscrosoft - otherwise my assumption would be that this is much less of a story than it sounds.

diafygi 12y ago
Huh, it does appear that officers are the ones who are locked up in the event that a corporation is held in contempt[1]. Which brings up another question. Instead of proposing that the officers be held in contempt, could the judge instead rule that the corporate charter get suspended? It seems like that would be more analogous to imprisoning a "person". [1] - http://www.millerjohnson.com/pubs/xprPubDetail.aspx?xpST=PubDetail&pub=1546 http://www.millerjohnson.com/pubs/xprPubDetail.aspx?xpST=Pub...

rdxm 12y ago

Here's the 64k dollar question. If Snowden hadn't dropped the dime on the douchebaggery going on not just at NSA, but also w.r.t. the complicity/cooperation by all the biggies(Google, FB, MS, etc), would MS be doing this? I assert that the answer is clearly a big No....anyone else agree with me??

jpatel3 12y ago
I guess we don't know, statistically answer might be No. But whats your point?

moogoo 12y ago

MS is playing a game here. There is no sovereignty issue involved at all since the emails in question are readily accessible by MS stateside. The question is one of access. MS is playing the locality card because they want to make the court order apply to a physical data center in Ireland when it does not...unless MS wants it to. Its fairly common when there are orders for data or code to be turned over for companies to play cat and mouse with access issues. For example, when being forced to turn over code printing the code out in a tiny illegible font and putting the reams of paper on a truck and delivering it that way. (Its been done many times) Even if MS prevails this is not good for the internet. If big companies resort to storing data overseas this will be toxic for US based cloud services.