Microsoft: Feds are 'rewriting' the law to obtain e-mails overseas

The Obama Administration is abandoning decades of established law in order to force Microsoft to hand over data from a foreign server, the software giant claims. “For an argument that purports to rest on the 'explicit text of the statute,’ the Government rewrites an awful lot of it,” Microsoft said in a new brief as part of its case against the government. “Congress never intended to reach, nor even anticipated, private communications stored in a foreign country when it enacted” the 1986 Electronic Communications Privacy Act, Microsoft said. Yet that, it claims, is exactly what the Justice Department is trying to do by issuing a search warrant ordering Microsoft to give up a suspected drug trafficker’s e-mail and records from an Irish data center.

Microsoft has claimed that digital data is no different than paper files in a desk drawer. If the government wants to obtain such files from another country, it needs to go through a foreign treaty process, the company says. Otherwise, it’s up to Congress to change the meaning of the law. “Until US law is rewritten, we believe that the court in our case should honor well-established precedents that limit the government’s reach from extending beyond US borders,” Microsoft general counsel Brad Smith wrote. In particular, Smith urged support for the Law Enforcement Access to Data Stored Abroad (LEADS) Act, which would update the 1986 law in several ways. “Looking back, there’s no indication that Congress intended to expand the geographic reach of search warrants when the statute was written in 1986, long before the dawn of the era of cloud computing," he wrote.