Computer giant Microsoft is taking on the U.S. government in a battle to protect the privacy of cellphone and computer users' personal email.
Brad Smith, Microsoft's general counsel and executive vice president for corporate affairs, wrote in an opinion piece in The Wall Street Journal
that government efforts to seize a consumer's email in a narcotics investigation hit a raw nerve.
The search warrant/subpoena was issued in December, seeking email stored in a Microsoft cloud facility in Dublin, Ireland. Microsoft is fighting it in a federal court in New York.
Smith argues that while the government may search business records by subpoena, it may not search personal information without a warrant and, when that information is stored overseas, it may not obtain it even through a U.S. search warrant.
"Microsoft believes the higher legal protection for personal conversations should be preserved for new forms of digital communications, such as emails or text and instant messaging," Smith wrote.
Microsoft is leaning heavily on a 9-0 Supreme Court ruling in June in U.S. v. Wurie and Riley v. California, in which Chief Justice John Roberts, wrote, "Our answer to the question of what police must do before searching a cellphone seized incident to an arrest is accordingly simple – get a warrant," The Hill
"The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the founders fought," Roberts wrote, according to EWeek
Smith wrote in a statement, "The court put a stake firmly in the ground and effectively declared that privacy protection must account for new technologies."
In a blog post, Smith further argued, writing, "We think it's a problem for governments to use a warrant to reach across international borders and search a person's email without respecting local privacy laws. And we are not alone."
In a survey
Microsoft commissioned through Anzalone Liszt Grove Research, 83 percent agreed that "police should be required to get a warrant before searching personal information on someone's cellphone," while 67 percent said, "Americans shouldn't have to give up privacy and freedom for safety from crime and terrorism."
Smith also wrote in the Journal that there is a concern that if the United States is allowed to reach into foreign countries to retrieve cellphone and computer personal data, "It's hard to believe that the American people will blithely accept that foreign governments can obtain their emails stored in U.S. data centers without letting them know or notifying the U.S. government. Yet the U.S. government is taking precisely this position toward emails stored in Microsoft's data center in Ireland."
The 1986 Electronic Communications Privacy Act allows a warrantless search of emails if they are over 180 days old. Microsoft, The Hill
reports, wants the law updated. Some 228 House members are backing legislation to do just that, but it has stalled.
Sens. Patrick Leahy, D-Vt., and Mike Lee, R-Utah, are seeking changes to the law that would require law enforcement to obtain a warrant before searching personal emails, The Hill reports.
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