Twenty years after the Clinton administration tried to stop the release of Microsoft’s Windows 95, the Obama Justice Department is asserting that the company’s Dublin, Ireland data storage hub, or cloud, is part of the United States.
In 2013, Justice demanded emails from Microsoft as part of a narcotics investigation—itself a regular practice that Microsoft regularly accepts and complies with. However, once the company realized the emails were held in Ireland, it informed the government it could not honor the demand.
In an interesting echo of President Barack Obama’s dismissal of concerns about federal government surveillance of domestic emails, Microsoft turned over meta-data to the Justice Department, but is withholding the actual message contents.
The impasse created a real-life Back To The Future scenario because the only law governing 2015 government access to email is the 1986 Electronic Communication Privacy Act.
In 1986, Congress passed ECPA to restrict the federal government, but because it was silent in regards to overseas cloud facilities, Preet Bharara, the larger than life U.S. Attorney for Southern District of New York, also known as Manhattan, asserts in court filings he has the green light, regardless of the privacy laws where data is held.
Enter Sen. Orrin G. Hatch (R.-Utah), who Feb. 12 filed his Law Enforcement Access to Data Stored Abroad bill that reins in the federal government’s ability to demand information stored in other countries.
“As Congress works to reform our domestic privacy laws, we must modernize the legal framework for government access to digital data stored around the world. This bill recognizes that these two issues are inextricably linked,” said Hatch, the chairman of the Senate Committee on Finance and the chamber’s president pro tempore.
The LEADS bill clarifies the federal government’s legal boundaries left unspecified by the 1986 ECPA at the water’s edge.
Now the issue is moving on two tracks: judicial and legislative.
Judge Loretta A. Proska, appointed by President George H. W. Bush, ruled in favor of Bharara July 31 and ordered Microsoft to deliver all the email content.
Brendon Lynch, the software giant’s privacy officer, wrote the same day in the company’s Cyber Trust Blog that Microsoft was making a stand.