Nationality in the cloud: US clashes with Microsoft over seizing data from abroad
Does cloud computing have a nationality? That's the question posed by Microsoft's lawyers and the counsel in a closely watched case whose oral arguments begin in Manhattan on Wednesday morning. The case scrutinizes the ability of the US government to seize information outside its own borders. Microsoft and the US government are facing off in the second circuit court of appeals over the tech giant's continuing refusal to hand over emails related to a narcotics case from a Hotmail account hosted in Ireland in 2013. Microsoft argues that its data should be protected by the laws of the land where its servers are located – a decision that will have major ramifications for cloud computing no matter which way it goes.
The case has made for strange bedfellows: Apple filed an amicus brief with Microsoft, as did the Electronic Frontier Foundation and Verizon, NPR and Fox News, the Irish government, the ACLU, eBay and the Guardian. In court documents, Microsoft argued: "The power to embark on unilateral law enforcement incursions into a foreign sovereign country – directly or indirectly – has profound foreign policy consequences. Worse still, it threatens the privacy of US citizens."
The government argues that because Microsoft is an American corporation, all data controlled in its facilities anywhere on earth can be subpoenaed lawfully because the tech giant is headquartered in Redmond, Washington. Because of that, US government lawyers say, officials have the right to repatriate records and the search warrant acts as a subpoena.