Topics:
- Privacy
- Extraterritorial Reach and International Law
- Impact to U.S. Business
- Impact to Freedom of the Press
This case strikes at one of the fundamental questions about technology today: How do we strike a balance between digital privacy and public safety? Here’s what others are saying about the case.
“The scope of the privacy laws around the world is now a very important question, and this is the beginning of what may be a lot of litigation on the question. So it’s a big case to watch.”
– Orin S. Kerr, George Washington University law professor
On the privacy issues at the core of the case:
“At the heart of the magistrate’s opinion is a fundamental misunderstanding about how the Fourth Amendment’s privacy protections apply in the digital world.”
– Electronic Frontier Foundation Amicus Brief
“The right to keep that data private is essential—and it requires that we extend and adapt longstanding legal protections to the new context of today’s digital world.”
– Victoria Espinel, president and CEO of BSA/Software Alliance
“The government’s argument is thus the equivalent of asserting that a U.S. bank can be compelled to produce documents stored in a safe deposit box in a foreign branch because they are “the bank’s records.” Or that a U.S. hotel chain can be required to produce luggage stored at a hotel outside the U.S. in a room rented by non-U.S. parties. That would be an extraordinary expansion of the government’s authority to obtain personal information, and a corresponding reduction in privacy protection provided by the laws of the country in which the data is located.”
– BSA | The Software Alliance, Center for Democracy and Technology, Chamber of Commerce of the U.S., The National Association of Manufacturers, and ACT | The App Association’s Amicus Brief to the Second Circuit Court of Appeals
“[Microsoft winning] is undoubtedly the best possible outcome of the case. For the cloud industry, it would solve once and for all the question of whether companies’ sensitive data is safe with American providers.”
– Jane McCallion, PC Pro UK
“We live in an age of digital data everywhere and laws governing access to that information need to be brought up to speed so they protect the rights of the individuals involved.”
– Richard Hay, Windows IT Pro
“Privacy protections clearly need to apply even in the age of cloud computing. That is why Congress must make sure that the law keeps up with the times.”
– New York Times Editorial Board
“After reading the government’s brief, I am increasingly convinced that nothing in the text, structure, purpose, or legislative history provides a definitive answer to the central issue in the case… as a result, the dispute is really a policy one.”
– American University Law Professor Jennifer Daskal, Just Security
On the issue of extraterritorial reach and international law:
“It is past time for Congress to modernize the outdated Electronic Communications Privacy Act. As we do so, lawmakers must not ignore the pressing issue of international data privacy and the need for Congress to establish a legal framework for accessing extraterritorial communications. The global reach of government warrant authority has significant implications for multinational businesses and their customers.”
–Senator Orrin Hatch (R-UT) statement on the introduction of International Communications Privacy Act (ICPA)
“A U.S. warrant should not reach electronic data stored outside of the country. If the U.S. government wins this case, it would severely undermine trust in the global cloud. It would certainly lead to other countries demanding, through their own domestic legal regimes, access to communications content stored in the U.S. on behalf of Americans and others.”
–Nuala O’Connor, president and CEO of Center for Democracy & Technology
“The Commission’s view is that personal data held by private companies in the EU should not, in principle, be directly accessed by or transferred to foreign enforcement authorities outside of formal channels of cooperation, such as for example the Mutual Legal Assistance treaties (MLATs). The Commission has brought this point to the attention of the US authorities on several occasions and is resolute to further insist on finding a solution to this question.”
– EU Justice Commissioner Vera Jourova
“…urgently needed is reform and modernization of the entire international system for mutual legal assistance, which should start with improved technology and procedures with our closest allies and those other countries from which we most urgently need information in our most important cases. “
–Bryan Cunningham, partner at Cunningham Levy
“The effect of the US District Court order is that it bypasses existing formal procedures that are agreed between the EU and the US, such as the Mutual Legal Assistance Agreement, that manage foreign government requests for access to information and ensure certain safeguards in terms of data protection.”
– Viviane Reding, Member of European Parliament and former vice president of the European Commission
“In an increasingly globalized world, protecting data stored abroad is critical to our country’s ability to compete in the global economy. Just like law enforcement agencies should be required to get a warrant before accessing the content of Americans’ communications within our borders, processes for accessing content located abroad should also comply with the law.”
– Senator Chris Coons (D-Del.) statement on the introduction of International Communications Privacy Act (ICPA)
“The search warrant at issue in this case is no run-of-the-mill investigative measure. If enforced, it would violate international understandings, harm American business, subject Americans to potential liability abroad, and invite foreign governments to unilaterally obtain electronic communications and data of Americans in the United States. There is no reason to believe that Congress intended these results when it enacted the SCA.”
– Verizon’s Amicus Brief
“United States search warrants do not have extraterritorial reach. The government is trying to do an end run.”
– Lee Tien, Electronic Frontier Foundation
“The [Court] failed to appreciate that the only way to render the foreign search here “reasonable” was to require the U.S. government to comply with Irish law and the Mutual Legal Assistance Treaty (“MLAT”) process in order to obtain the emails it sought. As Internet communications are globalized and American companies place data in numerous jurisdictions, the United States cannot ignore other countries’ sovereign interests in protecting the privacy of their citizens’ electronic communications and data.”
– Electronic Frontier Foundation’s Amicus Brief
“AT&T is concerned that a contrary result could be viewed as a sign that neither the Congress, nor the Executive Branch, nor the courts of the United States respect the data privacy and information law interests of other countries.”
– AT&T’s Amicus Brief
“If allowed to stand, the district court’s decision would place cloud services providers in the untenable position of either disobeying ECPA warrants in order to comply with foreign privacy laws or violating those laws in order to comply with the warrant.”
– Amazon and Accenture’s Amicus Brief to the Second Circuit Court of Appeals
“The United States’ demands for data stored abroad are increasingly likely to violate foreign laws prohibiting data disclosure—and are likely to do so regularly.”
– Apple’s Amicus Brief to the Second Circuit Court of Appeals
“Multinational companies must comply with applicable national laws. If US law requires access for mass surveillance and EU constitutional rights prohibit just that, the companies are caught between two stools… In a similar US case concerning access to individual emails – not mass surveillance – (Microsoft v. USA, see Wikipedia) US authorities have ordered Microsoft USA to disclose emails stored in a data centers in Ireland, leading to an ongoing court procedure about the extraterritorial application of US orders. Microsoft has cited Directive 95/46/EC as one of the reasons I could not deliver the relevant data under US law.”
– Max Schrems, privacy advocate
“The mechanisms established by the EU MLAT are expressly designed to permit U.S. law enforcement authorities to obtain personal data located in the EU for use in criminal investigation. By upholding the warrant at issue, the District Court endorsed the by-passing of the EU MLAT and the respect for foreign jurisdiction inherent therein.”
– Jan Philipp Albrecht, Member of European Parliament’s Amicus Brief to the Second Circuit Court of Appeals
“It is undisputed that a well-established cooperative process—under Mutual Legal Assistance Treaties—exists for the government to seek the type of information it claims to need in this case, and does so without placing cloud services providers in that untenable position, forcing conflicts with the laws of other sovereign nations, or distorting the statutory scheme Congress intended to achieve the opposite result. The government was unable to point to any evidence below showing that the MLAT process would be unworkable.”
– Amazon and Accenture’s Amicus Brief to the Second Circuit Court of Appeals
“Even if, contrary to the Appellant’s case, the warrant at issue is capable of applying to the content of the email account, this would nevertheless give rise to a conflict of jurisdiction. Microsoft would be required by the warrant, yet it is not permitted under EU law to transfer the contents of the email account to the U.S.”
– Jan Philipp Albrecht, Member of European Parliament’s Amicus Brief to the Second Circuit Court of Appeals
“The district court’s decision is troubling because it rejects the premise that U.S. law should respect the data protection laws of foreign countries whose regulatory interests are directly implicated, dismissing those foreign interests as being “incidental at best.”
– AT&T, Rackspace, Computer & Communications Industry Association, i2Coalition, and Application Developer Alliance’s Amicus Brief to the Second Circuit Court of Appeals
“If the U.S. gains access to personal emails without following established procedures, other countries are more likely to access the personal correspondence of U.S. citizens through unauthorized means as well. This risk was recently demonstrated by Alibaba’s plans to build a cloud data center in California. How would our government and citizens react if a Chinese court ordered Alibaba to share data on Americans with the Chinese government, citing the search warrant case as a precedent?”
– Karen Evans, national director, U.S. Cyber Challenge
On the impact to U.S. businesses:
“Microsoft is fighting a case in federal appeals court that may decide the future of U.S. cloud computing.”
– Dina Bass, Bloomberg
“Neither the broad economic interests nor the political interests of the United States will be served if foreign citizens believe that they are better off not doing business with U.S. based companies.”
– Apple and Cisco’s Amicus Brief
“The magistrate’s ruling, if left standing, could cost U.S. business billions of dollars in lost revenue, undermine international agreements and understandings, and prompt foreign governments to retaliate by forcing foreign affiliates of American companies to turn over the content of customer data stored in the United States.”
– Verizon’s Amicus Brief
“The government’s position—if adopted by this Court—will significantly deter the use of remote data management technologies by businesses and individuals, particularly their use of U.S. cloud services providers, and thereby undermine a significant contributor to U.S. economic growth.”
– BSA | The Software Alliance, Center for Democracy and Technology, Chamber of Commerce of the U.S., The National Association of Manufacturers, and ACT | The App Association’s Amicus Brief to the Second Circuit Court of Appeals
“By excluding considerations related to the laws of the country where data is stored and to which the data controller would be subject, the District Court’s analysis places providers and their employees at risk of foreign sanctions with no clear answers on resolving the inevitable conflicts between United States and foreign law.”
– Apple’s Amicus Brief to the Second Circuit Court of Appeals
“A government victory is almost certain to further erode willingness on the part of foreign companies to trust American business with their data.”
– Jaikumar Vijayan, The Christian Science Monitor
“This provides a reason for non-U.S. companies to say, ‘Don’t use U.S. company cloud services because that means the DOJ will have access to everything. Use ours instead.'”
– Andrew Pincus, partner at Mayer Brown
“To put this in plain English, if the Second Circuit finds in favor of the DoJ, the resulting legal scenario will very well break the cloud computing ecosphere. For Apple, Tucows, Amazon, Network Solutions, Google or any other company to continue to offer internet based email or cloud network services would be forced to create a subsidiary in each country they operate – each which has a slightly different set of privacy and data protections.”
– Dan Horowitz, former assistant administrator for policy and strategic planning, U.S. Small Business Administration
On the impact to freedom of the press:
“In short, it is plain that reporters, like other individuals, retain a First Amendment right in their own information even where it is held by third-party providers—and seeking that information directly from a third-party service provider on the assumption that it is the service provider’s information to disclose raises serious First Amendment issues.”
– Media Organizations’ Amicus Brief to the Second Circuit Court of Appeals
“Media organizations and writers are frequently the target of hacking, surveillance, and raids by authoritarian governments that would love nothing more than to access the emails of U.S. journalists who report within their borders but store their emails in the United States and more protective nations. By allowing the U.S. government to compel Microsoft to search and produce a subscriber’s emails stored in foreign venues, the district court’s opinion opens the door for foreign authorities to demand that Microsoft’s local subsidiary produce the records of U.S.-based journalists.”
– Media Organizations’ Amicus Brief to the Second Circuit Court of Appeals