Belgian Court Fines Microsoft For Failing To Comply With Its Impossible Order

from the we-said-JUMP dept

You can’t always get what you want. But if you try sometime, you just might fine… a company for being unable to deliver on the impossible.

Belgium has fined Skype €30,000 for failing to comply with a court request to intercept users’ communications, something Skype claims was technically impossible at the time of the request.

According to Het Belang van Limburg, a Dutch-language newspaper in Belgium, the fine was delivered by the court in Mechelen because Skype had failed, in September 2012, to deliver up anything more than metadata in response to an investigation into a criminal organisation.

The court, failing to understand anything but its power to order people around, demanded that Skype turn over communications. Skype turned over the only thing it could actually obtain, explaining that its architecture didn’t support the interception of calls. No dice. That only made the court angry.

The court was no more happy to have pointed out to it that Microsoft didn’t actually fall under its jurisdiction. It maintains no data centers in Belgium, nor does it have anyone employed there. Microsoft suggested the court work with governments of countries where it actually maintains a presence and utilize their mutual assistance treaties.

None of these facts appear to have mattered. The court says Microsoft should be able to do the impossible because the law is the law.

Het Belang van Limburg quoted prosecutor Tim Hoogenbemt as saying: “Skype offers services in our country, so it needs to know the laws. And therefore know that the court may ask interception measures.”

Sometimes the law isn’t the law, though. Microsoft pointed out the law doesn’t actually apply to it since it’s a software provider, rather than a service provider.

And sometimes the law is an ass. The fine is still in place despite arguments of impossibility, illegality, and “not applicable” to the contrary. It may not stick. Microsoft is appealing the decision.

This isn’t the first time Belgian courts have overreached. Back in 2009, Belgian officials blew off perfectly workable mutual assistance treaties, demanding user information directly from Yahoo’s US headquarters. Yahoo, like Microsoft, pointed out that it has no data centers or employees in Belgium. Instead of rethinking its approach, the government took the company to criminal court. That court, like this one, decided to fine the company for doing the exact thing it was supposed to be doing: protecting its users’ privacy.

And that’s not the limit of Belgian exceptionalism. A “royal decree” from the Belgian government (which bypasses the Parliamentary approval process needed for actual legislation) forces ISPs to collect and store tons of info on their subscribers, including how many emails are sent, VoIP use (hello, Skype!), call metadata, etc. — just in case law enforcement might need it. When it was pointed out this decree violated the EU’s privacy directive, the government shrugged and called the agreement it signed “obsolete.”

Given these decisions, it’s not even useful advice to suggest just not doing business in Belgium. It quite obviously doesn’t matter to the courts where the data or communications they’re seeking are actually located.

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Companies: microsoft, skype

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Comments on “Belgian Court Fines Microsoft For Failing To Comply With Its Impossible Order”

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hij (profile) says:

Are they really a software provider?

What are the terms of the license used in distributing skype? I do not know the details myself. If the license insists that the software belongs to Microsoft and the users are simply making use of Microsoft’s property then Microsoft may well be considered a service provider. Again, I do not know if this is the case, but if so then Microsoft may be trying to have it both ways.

Roger Strong (profile) says:

Re: Re: Are they really a software provider?

That’s making the assumption that the end user agreement holds up in court. As long as user aren’t pirating the software on a commercial scale, they have little to worry about.

For example Microsoft’s development software sold here in Canada has long had EULA clauses dictating that programmers don’t sell their programs into Cuba. Clauses dictating that programmers don’t use the development software on Linux or other operating systems. But those commandments are toothless if not actually illegal, and are simply ignored.

Internet updates mess that up, because a security update can sneak in unwanted changes. But that also happens with MacOS, Android and yes, even open source software.

Anonymous Coward says:

but the USA is exactly the same, so why bring this up? look what the DoJ is trying to do in Ireland and tell me what’s different. the USA is trying to get info it isn’t entitled to from Microsoft and it’s gonna carry on doing whatever the hell it wants to get it! the fact that it isn’t entitled to that info seems to be irrelevant to the DoJ. just like so many other instances concerning US law enforcement, it thinks it can have whatever it wants, can screw into the ground whoever it wants over anything, then whines like fuck when somewhere else wants something from the USA, and that’s including citizens!!

Anonymous Coward says:

Re: Re: Re:

Microsoft acquired Skype in may 2011, when it was a fully distributed system. Since then, they have moved the servers onto their own infrastructure. That move took time, and so they probably did not have the control and access to the data then that they do now. In other words you are right to worry about now.

That Anonymous Coward (profile) says:

The people of Belgium should be very concerned about their courts & government.
Having no clue how things actually work & refusing to accept reality isn’t something you want in those charged with the running of the country. (See also: Congress)

They can throw all the fines they like but it will not solve the issue & most assuredly won’t make M$ want to bother working with them. Why do anything for those who don’t understand the basics, and even if you manage to do the impossible they will want more.

Anonymous Coward says:

Actually, it’s not that Skype goes to Belgium to offer their services, but it’s the Belgians the ones who “travel” to the US or any country where MS has their servers.

Well, the truth is that it’s neither, because the user doesn’t actually leave their home.

The only thing that Belgian government can do is to force their ISPs to block Skype from being used by their citizens. But no, they have no jurisdiction over MS or any other service provider that isn’t inside their borders.

Also, a Royal Decree that bypasses law and that regulates matters related to the privacy and secret to communications right by itself? Without Legislative oversight?

What kind of shitty Constitution does Belgium have to allow that? In Spain, any kind of regulation related to that would need an Organic Law (like the Data Protection Organic Law), that requires not only simple majority, but absolute majority from the Congress.

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