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As court weighs Microsoft case, rest of world feels a big stake in privacy ruling

Tim Johnson, McClatchy Washington Bureau on

Published in Political News

WASHINGTON -- Later this month, Supreme Court justices will hear a case involving Microsoft's heated dispute with federal prosecutors over whether it must turn over data currently hosted in a storage facility in Ireland. At the heart of the legal dispute is whether U.S. courts can compel a company to turn over an individual's data when it is held overseas.

The case has drawn intense global interest, including more than a dozen legal briefs to the Supreme Court from abroad, in a sign that some parties believe a ruling may offer a future road map for the internet.

The showdown is unfolding on several fronts. Bills put forth in both chambers of Congress this week would partially resolve disputes over law enforcement access to private data held across borders. The bipartisan bills would obligate service providers in "possession, custody, or control" of data to turn it over to prosecutors under certain conditions regardless of where the material is stored.

Still, some mystery surrounds the legal dispute that will be aired Feb. 27 in Supreme Court chambers. For one, prosecutors have never identified the person who was targeted in a warrant issued by a New York district court judge on Dec. 4, 2013.

"We don't know what the nationality is of the subject. We know that the case is about drugs. But we don't know a lot more than that," said Gregory T. Nojeim, senior counsel at the Center for Democracy & Technology, a public policy group in Washington.

Prosecutors demanded from Microsoft all emails and information associated with the subject's account, and the Redmond, Wash., tech giant responded that it could not be forced to turn over information stored overseas, in this case at a data center in Dublin, Ireland.

 

At its heart, the case goes to a conundrum of the modern age: Where does data in "the cloud" actually reside and what sovereign entity should have control?

"Is the data on the server, wherever the server is located? Or is the data from wherever you can access that server? Or does the data not have any location?" asked Faiza Patel, co-director of the Liberty and National Security Program at the New York University School of Law's Brennan Center for Justice. A different program at the NYU law school filed an amicus brief in the case.

The most pertinent statute on data, the Stored Communications Act, was passed three decades ago.

"The government relies on a law that was enacted in 1986, before anyone conceived of cloud computing," Brad Smith, Microsoft's president and chief legal officer, wrote in a blog post Jan. 19.

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