By Dennis Crouch
In United States v. Microsoft, the Supreme Court is asked to determine the scope of US extraterritorial police powers. Back in 2013, the Federal Government served a warrant on Microsoft seeking email records of one of its clients who was a suspected drug trafficker. Microsoft refused to comply because the emails were stored in Ireland. Although related to the Fourth Amendment, the question presented to the court centers on the scope of the Stored Communications Act – and whether warrants issued under 18 U.S.C. § 2703 can compel a US entity to retrieve and deliver materials stored abroad. Microsoft argues that the FBI should go through Irish protocol to get the information stored in Ireland. The case could have some obviously big impact on corporate disclosures abroad.
We might talk about liberty and freedom, but Microsoft’s position here is that a key way for US Citizens to maintain secrecy is to use foreign servers. Of course, few folks know the location of the clouds where their information is stored. Here, it was simply favorable tax law and a love for green that led to Microsoft’s Irish servers. A more apt question might be whether Microsoft must take action in Ireland or can the retrieval be entirely controlled from the US.
An opinion should be out by mid-June.
“I like taking the guns early,” President Trump says. “Take the guns first, go through due process second.”
LOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOL
You are SO much the Trump of these boards Malcolm.
That you seem not to get it is the height of the hilarity.
The US mutual legal assistance treaty with Ireland would seem to cover this pretty well but it is too inefficient to use. If only someone knew how to configure a first module and a second module located in two different countries wherein the first module communicates MLAT information to a second module which alerts a user of the second module that an MLAT request has been transmitted from the first module.
I found it interesting that in the argument, several justices were reaching to find physicality or human interaction in Ireland, presumably in contrast to electronica or robot actors (they even laughed at the idea of a Microsoft robot sitting at a console in Ireland).
Since we all know computers are magic, those justices seem to sense a difference – maybe call it a metaphysical or philosophical difference- between things that are physical and done by people, and things that are electronic and done by robots.
I know this dichotomy exists in the minds of a great many people, and in my view…will eventually play a role in the evolution of the patent system.
I believe the word that you are searching for is:
anthropomorphication
Nope, that word would be an oversimplification.
In fact, it goes the other way- closer would be
de-anthropomorphication since it’s the removal of characteristics of human beings they appear to be seeking, but that’s still not enough unless you have a word that combines de-anthropomorphication with incorporeality. I assume you don’t.
fair enough – that word is meant to be symbolic, and indeed if one were to flesh out all of the nuances, no single word would do.
This presents a good opportunity to again ask the good professor (or one of his academic brethren) to write an historical piece detailing the rise, fall and attempted reanimation of the Mental Steps doctrine in patent law.
Such a piece would clearly show the level of dissembling that is going on in the anti-software efforts.
write an historical piece detailing the rise, fall and attempted reanimation of the Mental Steps doctrine
Yes, you should write that. We could use the laughs.
We’ve been over this many times now, Malcolm.
I have called for academia to do this so that you simply do not throw a hissy fit and dismiss the writing out of hand.
Pull your head out please.
This case may actually have a huge, unexpected and unintended effect on the new EU General Data Protection Regulation (GDPR) coming into effect May 25.
One of the big grey areas in transatlantic digital business for the past decade has been the back and forth between EU regulators and US based firms on where and under what conditions data processed outside of the EU may be handled. At the moment, firms can still host in the US, but GDPR enforcement is an unknown, and if the USSC says that Microsoft may protect data by simply moving it offshore, it will almost certainly motivate EU regulators to insist on EU physical hosting, whereas if they say that personal jurisdiction is what matters, rather than physical location of data, it would render the costs of local hosting to vendors (and eventually EU customers) not worth the candle.
Hard to get a sense of where this is going from the argument. Liberal and conservative are all mixed up on the court these days, and this issue, unusually, has virtually no ideological component. I suspect Microsoft loses, but who writes the opinion and how close the vote seems impossible to gauge.
The union case argued yesterday, on the other hand, could come out very weirdly. If Roberts tilts with the liberals, against all odds, for a 5-4 in favor of agency fees, you read it here first.
The union case argued yesterday, on the other hand, could come out very weirdly.
If Roberts goes against the unions it’s going to be even weirder.
Be careful what you wish for, Rep u k k k es and glibertarians.
Oh wait: thinking over a time course longer than three years is for weaklings who don’t have a lot of money and power already. My bad.
LOL
What about skimming data (while still in this country) on its way out to the foreign based servers (or on the way back in)…?
I would be sincerely interested in Malcolm’s view on this “data treatment” item, and how it might intersect will his more typical “data manipulating patent” views (even though he feigns ignorance, the “data should be FREE” mode); coupled with his own never cogently explained DISQUS days of selecting the highest level of secrecy possible (well beyond any stated rationale) in order to not let his own data be easily co-located.
The typical Liberal Left “Big Government is your friend” and “Data should be FREE (except for Malcolm, and only for ‘those others’) type of thing…
Setting aside the mountain of smelly tinfoil (and its many oddly shaped but glaring holes), this is really all anyone needs to know:
DC: the Federal Government served a warrant on Microsoft seeking email records of one of its clients who was a suspected drug trafficker.
Okay so we’ve got a warrant for records that are owned by Microsoft. It’s not a warrant to search every Miscrosoft users emails to see look at their p orn preferences. It’s limited to one client’s email records. There is other evidence showing that the client is a suspected drug trafficker (hence the warrant). How or why Billy thinks this issue relates to the ineligibility of patents that protect information or logic is one of those teeny tiny mysteries which we wisely will spend zero time trying to solve.
Microsoft refused to comply because the emails were stored in Ireland.
That’s not why Microsoft refused to comply. Microsoft refused to comply because it’s bad for Microsoft’s business to comply. Period. The “stored in Ireland” is a defense for the criminal or civil charges that will be brought against Microsoft for failing to comply with the warrant.
Microsoft’s position here is that a key way for US Citizens to maintain secrecy is to use foreign servers
Last time I checked, criminal activities falling within the scope of a warrant aren’t protected by one’s “right to privacy”. If Microsoft — as US company — has access to and control over the data in Ireland (or wherever) then
In any event, if the United States really wants this data, all they need to do is characterize the “client” as a terrorist, find the client’s mother, wife and/or child, and, under the President’s orders, slowly drip sulfuric acid onto her face (or threaten to) until the desired information is obtained. The amazing and super respectable Professor Yu will back this up for anybody who has questions. Great country, though! Just the best. Huge!
Actually no need to find the client in this case. Just grab the family of one of Microsoft’s executives.
You seem to have missed the point that search warrants are limited. A US search warrant does not enable a US law enforcement agency to require a US citizen to travel overseas to a foreign country and recover files from a house located in that country to be turned over to the law enforcement agency. Nor does it permit said law enforcement agency to travel to the house in that country themselves and remove files located in that house. The location of a physical file in a foreign country places it outside the ability of a US law enforcement agency to recover using a US search warrant, and other methods including cooperation of foreign governments and their law enforcement agency is required to obtain the files. The question the Supreme Court will need to determine is how closely electronic files and the location of servers can be equated to physical files and the location of physical storage spaces.
But mike, it’s all “data” and “abstract” and “magic,” so there is no nexus with any “real” physicality.
Where’s my sar casm emoticon….?
Comments are closed.