from the that's-not-how-this-works dept
The Government's interpretation ignores the profound and well established differences between a warrant and a subpoena. A warrant gives the Government the power to seize evidence without notice or affording an opportunity to challenge the seizure in advance. But it requires a specific description (supported by probable cause) of the thing to be seized and the place to be searched and that place must be in the United States. A subpoena duces tecum, on the other hand, does not authorize a search and seizure of the private communications of a third party. Rather. it gives the Government the power to require a person to collect items within her possession, custody, or control, regardless of location, and bring them to court at an appointed time. It also affords the recipient an opportunity to move in advance to quash. Here, the Government wants to exploit the power of a warrant and the sweeping geographic scope of a subpoena, without having to comply with fundamental protections provided by either. There is not a shred of support in the statute or its legislative history for the proposition that Congress intended to allow the Government to mix and match like this. In fact, Congress recognized the basic distinction between a warrant and a subpoena in ECPA when it authorized the Government to obtain certain types of data with a subpoena or a "court order," but required a warrant to obtain a person's most sensitive and constitutionally protected information -- the contents of emails less than 6 months old.Unfortunately, as we noted at the end of July, the judge in the case, Loretta Preska, sided with the DOJ.
On Friday, Judge Preska did what was basically a procedural move. When she had made the original ruling, she had put a stay on the ruling, fully expecting Microsoft to appeal. This is fairly standard procedure. When a district court judge knows a ruling is likely to be appealed the judge will frequently "stay" the ruling pending the appeal. The DOJ claimed that this was a procedural error and that the particular order, for a whole host of boring legal reasons, is not an "appealable order" and that the stay is inappropriate for that reason. Everyone involved in the case -- the Judge, Microsoft and the DOJ -- knows that it's going to go to an appeal. There's just a very, very minor debate over the correct legal process to get it to appeal. Judge Preska agreed that the original order probably is not appealable, and thus the stay order makes no sense, since it was only pending the appeal. Thus, to speed things along, she lifted the stay, noting quite clearly that this was to help along the appeal process:
Both parties share the common goal of permitting the Court of Appeals to hear this case as soon as possible. Their disagreement concerns the correct path to that goal. In order words, the parties agree on the destination but the route to get there is the subject of hot dispute.Basically, this was a very minor move to push things onto the proper legal track to get this case before the appeals court. Because the original order isn't technically appealable, the stay didn't make any sense, so the Judge removed it, with everyone knowing that Microsoft won't hand over the info, leading the Judge to issue a different ruling that can be appealed. I saw the news on Friday and realized it wasn't worth writing about, because it's basically nothing.
However, a few sites appear to have totally misread this into being a big deal. If you don't read carefully, seeing that a judge lifted a stay suggests that Microsoft is being forced to hand over the info. But anyone who actually read any of the details (including the decision and/or the Reuters report that broke the news) should have known that wasn't actually the case. Microsoft then said the most obvious thing in the world: that it wasn't handing over the info, because it hasn't done that all along and this is what it needs to do to get the case to appeal. But a bunch of sites misread the whole thing as if Microsoft was somehow taking a new stand, rather than just procedurally moving things forward. A site called WindowsITPro wrote up that Microsoft was now "defying" a court order and this somehow proved it was a heroic company, fighting for its customers:
Despite a federal court order directing Microsoft to turn overseas-held email data to federal authorities, the software giant said Friday it will continue to withhold that information as it waits for the case to wind through the appeals process. The judge has now ordered both Microsoft and federal prosecutors to advise her how to proceed by next Friday, September 5.They did this, even though in the very next paragraph the Microsoft statement itself points out that this is nothing more than a procedural issue. Unfortunately, sites like Slashdot also picked up on the WindowsITPro story and repeated the misleading headline.
Let there be no doubt that Microsoft's actions in this controversial case are customer-centric. The firm isn't just standing up to the US government on moral principles. It's now defying a federal court order.
Yes, Microsoft is trying to protect its customers' email data (held in Ireland) in this case. And yes, it's an important case. But Microsoft (and a variety of other tech companies that filed amicus briefs in support of Microsoft's position) took that stand months ago. What happened on Friday was a minor procedural effort to move the case along, and didn't represent any big new "heroic" move by Microsoft to "defy" a court order. Nothing to see here, move on. The appeals court is where this case will actually get interesting.