John Ribeiro

The US Department of Justice has asked a New York court to vacate a stay on an order that would require Microsoft to turn over to the government certain emails held abroad.

The company, which had asked for the stay to pursue an appeal, may now have to refuse to comply with the order after the stay is lifted for its appeal to be acceptable by the appeals court, according to the plan outlined by DOJ to the court, citing a "jurisdictional defect. If Microsoft refuses to comply with the order, then the court is requested to issue "a contempt order that would, in turn, be a properly appealable final order, which could be stayed on consent pending appeal."

The DOJ said it also raised the option of jointly seeking from the court a final appealable contempt order, but Microsoft has chosen not to join in this request.

AT&T is backing Microsoft in its challenge of a US search warrant for private email communications located in a facility in Dublin, Ireland.

The telecommunications company filed in a New York court asking permission to submit an amicus curiae brief in support of Microsoft. Described as a "friend of the court," an amicus curiae is not directly involved in a litigation but believes it may be impacted or has views on the matter before the court.

Along with Verizon, all three companies have expressed concern that the US government's demands for data held abroad could alienate overseas customers from placing their data with US providers, particularly after the disclosures of surveillance abroad by the US National Security Agency.

Following up on a jury verdict, Apple has asked a court in California to order Samsung Electronics to stop using features that were found to infringe three of its patents.

The company has also asked the court to review damages awarded by the jury or to order a retrial.

The injunction sought by Apple in the US District Court for the Northern District of California, San Jose division would cover features such as 'slide-to-unlock' on phone home screens for unlocking a device, auto-correct for prompts on the spelling of words, and the so-called 'quick links' feature for scanning text to identify certain types of structures such as phone numbers, dates and email addresses.

Apple said it was not asking the court to bar entire product lines from the marketplace, but for an injunction that proposes to stop Samsung from further use of the specific features that the jury found to infringe Apple's three patents, and those features not more than "colorably different."

Apple has proposed a one-month "sunset period" for delay in enforcement. During this period, Samsung can "swap-in the non-infringing alternatives that it claims are already available and easy to implement," according to the redacted public version of the filing. Having represented that it can design around Apple's patents completely and quickly, Samsung cannot complain that Apple's narrowly-tailored injunction will deprive the public of a single Samsung product, it added.

A court in California has prohibited the destruction of phone records collected by the government until further orders, raising a potential conflict with an order by the secret Foreign Intelligence Surveillance Court in Washington (DC).

Judge Jeffrey White of the US District Court for the Northern District of California ordered the retention of the call details in two lawsuits that have challenged the US National Security Agency's program for the collection of telephone metadata. A number of lawsuits challenging the NSA program have been filed by privacy and other groups, including the American Civil Liberties Union and the First Unitarian Church of Los Angeles. Reggie Walton, presiding judge of the FISC, denied a motion from the Department of Justice that the current five-year limit for holding phone metadata should be extended indefinitely, as it could be required as evidence in the civil lawsuits challenging the program. An extension of the time limit would further infringe on the privacy interests of US persons whose phone records were acquired in large numbers and retained by the government for five years to assist in national security investigation, Judge Walton wrote in his order.

"The great majority of these individuals have never been the subject of investigation by the Federal Bureau of Investigation to protect against international terrorism or clandestine intelligence activities," he wrote. In his temporary restraining order, Judge White has, however, prohibited the destruction of any "potential evidence relevant to the claims at issue" in the lawsuits, including the destruction of any telephone metadata or "call detail" records, pending a further order of the court. [March 11]