Data Stored in the Cloud May be Subject to Government Subpoenas

The U.S. Supreme Court is set to hear a dispute between the government and Microsoft about whether or not Microsoft has to turn over stored customer information such as emails to criminal prosecutors. The result of the case could have a huge impact on people’s Fourth Amendment rights, and affect what information the government can and cannot get when conducting a criminal investigation. 

Microsoft Challenges a Warrant

The facts of the case are simple. The government was prosecuting people suspected of committing drug crimes. It asked Microsoft to turn over those suspects’ private emails. It did—but only those that were stored on servers here in the United States. Microsoft refused to turn over any information from servers that were located in Ireland.

Federal law does allow the government to obtain certain kinds of stored digital information from third parties, and the government in this case even got a warrant for the emails. But Microsoft argued that U.S. laws do not apply to data stored in other countries, and that the applicable law would be wherever the digital information is physically stored – in its case, Ireland.

Compelling turnover of the information, Microsoft argues, infringes on international treaties and on a foreign country’s sovereignty.

Who Owns Information?

Aside from international law questions, the case also raises questions of who owns information stored “in the cloud,” the customer or the ISP or data storage company.

If it is owned by the companies, potentially, no consent by the owners of the data is needed before private electronic communications are released by tech companies. If it is owned by the customers, then consent would have to be obtained.

Tech companies say that a U.S. court could not compel a company to fly to an overseas warehouse and extract data from that warehouse, which is subject to the laws of the country the warehouse sits in. If courts could not do that, it should make no difference that such data can be retrieved from servers in foreign countries without having to physically go to that country.

Government Makes Additional Arguments Affecting Privacy

The government is also arguing that simply obtaining someone’s emails is not a Fourth Amendment Search and Seizure. Those rights only come into play, the government argues, when government actually reads or reviews the content of the emails.

They also argue that although a warrant was obtained in the case, a simple subpoena would have been sufficient, as well. Subpoenas generally do not ask for information from the defendant that the defendant owns, but rather from property of the defendant that is in the possession of someone else or that is owned by someone else.

But a subpoena requires a much lesser showing than a warrant. A subpoena does not even need to be approved by a judge, as a warrant does, and requires no showing of probable cause.

The outcome of the case could have devastating effects on the constitutional rights of criminal defendants, who may find that data they store or save or upload, loses privacy protections depending on where the data is stored or housed.

If you are charged with a crime you have constitutional rights. Contact the attorneys of Brassel Alexander, LLC today for a free consultation to discuss any arrest or criminal charge against you.