The Department of Justice filed a petition requesting an en banc rehearing of the 2nd U.S. Circuit Court of Appeals case, which sided in favor of Microsoft that said American service providers are not required to honor warrants seeking data outside the United States.
In this case, which was decided in July, the data the DOJ was asking for belonged to a non-U.S. citizen and was stored in a data center in Ireland.
The DOJ argued that the decision should be overturned because the location of the stored data is arbitrary and not determined by law, the case doesn’t follow precedents, and the decision gives technology companies loopholes in the U.S. law.
The DOJ said that the creator of the data doesn’t have control over where Microsoft chooses to store the data and all technology companies have different policies as to where they store data.
The DOJ said that the decision will limit investigations and confuse providers about how to comply with the law enforcement system.
The decision also reverses provisions in the Stored Communications Act, part of the the Electronic Communications Privacy Act (ECPA) of 1986, which hold that providers must submit customer information when presented with a warrant.
“Three experienced judges already agreed this 30-year-old law doesn’t apply to email content abroad,” said a spokesman for Microsoft. “We want to work with Congress and the Justice Department on a modern solution that benefits both privacy and public safety rather than debating the reach of obsolete law.”
Microsoft has been expanding the reach of its overseas data centers by establishing its cloud services in German data centers that have privacy protections in place that ban anyone other than the data trustee, including Microsoft and law enforcement, from gaining access to user information.
Following the 2nd Court of Appeals decision, Microsoft would have no legal trouble establishing these services, according to Stewart Baker, former National Security Agency general counsel and partner at Steptoe and Johnson. If the decision is overturned, the fates of these data centers are uncertain.
“Microsoft’s mission is to empower every person and every individual on the planet to achieve more,” said Satya Nadella, chief executive officer of Microsoft. “Our new data center regions in Germany, operated in partnership with Deutsche Telekom, will not only spur local innovation and growth, but offer customers choice and trust in how their data is handled and where it is stored.”
Editor’s Note: This story has been updated to reflect the nature of the appeal and the name of the Stored Communications Act.
