Microsoft data privacy fight- present and future implications
Overview of the legal dispute and stances of importance parties explained
Why is data stored all over the world?
To serve an increasingly global audience more quickly. Storing a client’s data close to where that client is reduces lag time. The biggest data-center operators, like Microsoft and Amazon, are always on the lookout for cheap land, tax breaks and access to cut-rate electrical power as they add more storage facilities.
How did cloud computing change the cyber landscape and legal implications
Before cloud computing, individuals stored their digital information on their computers at home and corporates stored their data on server computers in offices. If the government desired to search someone’s information stored on a computer, it would request and obtain a search warrant, enter that person or company’s premise and access the device physically. The practical implication of this is that the person or company to whom the computer belongs to knows about the search and could launch a defence to the search legally i.e. their negative rights to their own data protection is at least secured.
However, as information moved to the cloud, the warrants could be served on a cloud service provider (Microsoft in this case), instead of the particular individual or company. Transparency is mitigated and the individual or company no longer necessarily know whether and when their information is accessed. Without that knowledge, they lacked the ability to protect their data privacy rights. In other words, this changed the privacy equation between citizens and the state- citizens’ right to data privacy shifted to tech companies and tech companies bore more fundamental responsibilities in protecting data. This is especially true after the Edward Snowden controversy, which tech consumers suspected US tech companies as government spies and their trust to tech companies has plummeted. Overseas customers (especially corporate clients) in particular wanted assurances that data would be kept private, that they would have a say in where their information is stored and to have their negative rights to object government’s search ensured by law.
5. Why is U.S. law not clear on this subject?
The law at issue in this case, the Stored Communications Act (SCA), which lets law enforcement gain access to electronic information once they obtain a warrant, dates back to 1986 and has not been reformed since then. That was three 20 years before Amazon opened the cloud computing era.
Timeline of event and stances of main parties
Main argument of the US government is that SCA warrants function as both a warrant and a subpoena, and thus are not restricted by territorial constraints.2 Microsoft would be able to comply with the subpoena-like nature of the SCA warrant.
The Irish government also filed a brief in support of neither party.6 The Irish government considered that the U.S. government’s action violated both the European Union’s Data Protection Directive and Ireland’s own data privacy laws, and maintained the emails should be disclosed only on request to the Irish government pursuant to the long-standing mutual legal assistance treaty (MLAT) between the U.S. and Ireland formed in 2001.789
The panel primarily focused on the extraterritoriality of the SCA, The court relied heavily on the United States Supreme Court’s 2010 ruling in Morrison v. National Australia Bank that the “longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States” applies in all cases. The Second Circuit found no mention of extraterritorial application in the SCA nor in its legislative history. The court said the SCA’s use of the term “warrant”, as a term-of-art, suggested a specific territory. It also concluded that the primary focus of the SCA was protecting the privacy of users of electronic services.12
In his concurrence, Judge Lynch noted that there was nothing in the record to indicate whether