
Microsoft wins federal appeal over warrants for data held outside US - vezycash
https://www.rt.com/usa/351052-microsoft-emails-ireland-server/
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sandstrom
This is great news (for consumers world-wide and for American companies). Bad
for European companies which could have used this as a competitive advantage.

As someone else said in this thread, it restores some sanity to US
extraterritorial jurisdiction.

~~~
tzs
> As someone else said in this thread, it restores some sanity to US
> extraterritorial jurisdiction.

It doesn't seem that obviously sane to me, since it means we have a largely
arbitrary distinction between electronic documents and physical documents.

For instance, suppose you loaned me a valuable physical document of yours. I
put it in a safe deposit box at a bank in the United States. You ask for the
document back and I refuse. You could go to court and get a court order
telling me to return the document to you.

Now supposed instead I had put that document in a safe deposit box in a bank
in Mexico. You would still be able to get a US court order telling me to
return the document to you. To avoid contempt of court, I'd have to go to
Mexico and retrieve the document.

Yet this would not be seen as the US court trying to exercise extraterritorial
jurisdiction over Mexico or Mexicans. Mexico has no problem with me going
there and retrieving items from my safe deposit box [1]. It is irrelevant to
them _why_ I've decided to retrieve the document from my safe deposit box.

We also have a kind of similar thing with money. If I owed you $1 million, and
you sued to collect, a court might order me to transfer $1 million to you. If
I had arranged things so all of my money was in a foreign bank account, and I
only had a few thousand dollars worth of seizable assets in the US, the court
could still order me to transfer the money from my foreign bank account, and
that would not be seen as extraterritorial jurisdiction.

If we make a slight change, so that I've lost the key to my safe deposit box
and the bank is refusing to bypass this and open the box for me, and the court
ordered the bank to open the box and turn over the document, then it would
matter where the bank is located.

If the bank was in the US, no problem. If the bank was in Mexico, then the US
court attempting such an order would be attempting to exercise
extraterritorial jurisdiction. The difference is that now they are trying to
compel Mexicans to do something.

OK, now let's switch to an electronic document. So instead of storing it in a
safe deposit box in the above scenarios, I'm storing it on a server. Let's say
I have servers in both the US and in other countries. When I store a document,
I pick where to put it based on considerations such as available capacity at
my various servers, network latency, storage cost, and other things like that.
Assume I'm in the US, and I control all my servers from my office in the US.

I can't see any reason to treat this different than the safe deposit box or
money scenarios.

Basically, if I have control over something and can legally move it around or
transfer it, then a court that has personal jurisdiction over me ordering me
to move that thing around or transfer it is just exercising its personal
jurisdiction over me. It is not trying to exercise jurisdiction in or over the
place where the thing resides.

[1] well...I'm just assuming that foreigners are allowed to have safe deposit
boxes in Mexican banks. If Mexico restricts foreign use of safe deposit boxes,
pretend that instead of Mexico I picked some country that does allow
foreigners to use safe deposit boxes.

~~~
dsp1234
_For instance, suppose you loaned me a valuable physical document of yours. I
put it in a safe deposit box at a bank in the United States. You ask for the
document back and I refuse. You could go to court and get a court order
telling me to return the document to you.

Now supposed instead I had put that document in a safe deposit box in a bank
in Mexico. You would still be able to get a US court order telling me to
return the document to you. To avoid contempt of court, I'd have to go to
Mexico and retrieve the document._

This case isn't about _discovery_ , it's about search warrants. In the case of
discovery, it's pretty established that a parent company is, generally,
required to produce documents of a foreign subsidiary.

The requirements for search warrants are different. Generally, search warrants
are only valid for the jurisdiction in which the application comes from. In
the case of documents/servers/safe deposit boxes/etc in Mexico, the US would
not have jurisdiction, and would be required to gain the cooperation of
Mexican law enforcement.

This is why this case is even being heard. The US wanted to force Microsoft to
allow a search of a foreign subsidiary's documents, knowing that the law
enforcement of the country in question would never execute the search (since
it's illegal in Ireland).

Edit:

A key difference between a search warrant and the discovery process is who the
courts are ordering to take the action in question. "A search warrant is a
court order that a magistrate, judge or Supreme Court official issues to
authorize law enforcement officers to conduct a search of a person, location,
or vehicle for evidence of a crime and to confiscate any evidence they
find."[0]. Contrast that with "A motion to compel asks the court to order
either the opposing party or a third party to take some action. This sort of
motion most commonly deals with discovery disputes, when a party who has
propounded discovery to either the opposing party or a third party believes
that the discovery responses are insufficient."[1]

In the search warrant case, the court is authorizing a law enforcement to take
an action. In the motion to compel case, the court is ordering the non-
compliant party to take an action.

[0] -
[https://en.wikipedia.org/wiki/Search_warrant](https://en.wikipedia.org/wiki/Search_warrant)

[1] -
[https://en.wikipedia.org/wiki/Motion_to_compel](https://en.wikipedia.org/wiki/Motion_to_compel)

~~~
cloudjacker
I honestly don't think I've ever seen or heard a legal analogy that was
legally analogous at all.

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stevehiehn
If they didn't win why would any country want to use an American cloud
provider? The USA could be shooting themselves in the foot in a big way. Trust
is key to adoption.

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dangero
If I understand this correctly this means a corporation could buy an
independent island, store the data there and the US could not issue a warrant
for information from those servers. I wonder what this means for servers on
barges as well. Google had a plan to build floating server farms a few years
ago.

~~~
dublinben
The ruling in this case means that they do not even need to buy an independent
island. They already have one, i.e. Ireland. This ruling just restored a
little bit of sanity to the state of warrant procedure and US extraterritorial
jurisdiction.

~~~
astronautjones
But they don't need warrants to get information intercepted by Ireland - they
freely trade information with their security services

~~~
yulaow
Yes, but first someone in Ireland has to get a warrant to allow someone t
intercept those information. And with a very good reason that violates Ireland
laws.

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randomgyatwork
It seems like access to data on US soil is a competitive dis-advantage for
American companies.

~~~
marcoperaza
Or perhaps an advantage. Data stored on US soil is subject to more legal
protections. Data stored in other countries is fair game for American
intelligence agencies, the most sophisticated in the world by far, to hack and
steal. This case was just about whether the US government could compel
Microsoft to hand it over with a warrant.

~~~
SEJeff
Legal protections like what, FISA court orders?

[http://www.motherjones.com/mojo/2013/06/fisa-court-nsa-
spyin...](http://www.motherjones.com/mojo/2013/06/fisa-court-nsa-spying-
opinion-reject-request)

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danjoc
The US will appeal the ruling?

Also, does Rule 41 changes from SCOTUS due Dec 1 basically make this ruling
obsolete?

[https://fcw.com/articles/2016/06/30/wyden-
rule-41.aspx](https://fcw.com/articles/2016/06/30/wyden-rule-41.aspx)

~~~
dragonwriter
My reading is no, since the Rule 41 changes still require the warrants to be
issuable under US law, just removing the requirement that the actual data be
held within the geographic jurisdiction of the particular court to be
affected. As this ruling turned on the presumption against exterritorial
application of US law and not on the geographic jurisdiction of the particular
court issuing the warrant, it would be unaffected by the changes.

------
nxzero
PDF of the related court document:

[http://www.ca2.uscourts.gov/decisions/isysquery/9fe69789-0ad...](http://www.ca2.uscourts.gov/decisions/isysquery/9fe69789-0ad8-46e4-9355-33fb82ef652c/1/doc/14-2985_complete_opn.pdf)

