According to a news report, “Earlier this week 28 technology and media companies, 23 trade associations and advocacy groups and 35 professors of computer science filed legal papers in support of Microsoft’s opposition to US court rulings earlier this year which said that US authorities’ search warrant powers apply to customer information held outside of the US.”
I have had difficulty understanding the legal basis for Microsoft’s objection. Is it not clear that either law enforcement authorities or civil courts can require the production of documents in the custody or control of an enterprise that is located in their territory? The information or documents or data in custody need not be physically present in the jurisdiction of the requesting authority, so long as the control is there.
I understand that Microsoft (and its many other supporters) would rather not produce the information. I understand that they may be concerned about production orders from other governments in whose jurisdiction these multinational corporations operate (though there might be an argument about ‘control’ for places not the head office of the corporation.)
I also understand that American companies would like to be able to assure foreign potential customers that their data will not be subject to inspection by American national security or police forces. My impression is that this consideration is mainly what is driving the current dispute. I have heard (without evidence) that US companies have lost business internationally since the Snowden revelations on just this ground. (I wonder if there is any need for the concern … security forces collaborate internationally, so what the Americans want they can probably get from the domestic security agencies of those potential customers.)
Nevertheless, is the assertion of the law enforcement authorities in this case novel in some way?
Is not the request similar in principle to the one that the Canada Revenue Agency made to eBay Canada for its records of power sellers, which the Federal Court required eBay Canada to retrieve from servers outside Canada, because the Canadian company had access to them for its own business purposes – i.e .the records were in its control for that purpose, and thus could be requisitioned for a tax audit?
If Microsoft’s challenge succeeds, would not any company with any kind of transborder ambitions simply keep any sensitive or embarrassing data in some data haven somewhere, out of reach of national authorities – judicial as well as administrative – of countries in which it carries on business, or even has its head office? If not, what is the dividing line or distinguishing principle?