Microsoft's data center in Dublin, Ireland
Microsoft’s data center in Dublin, Ireland (Microsoft)

Microsoft Corp. and its allies have braced for a long battle in the courts and in Congress over a 1986 electronic communications law, as the technology giant fights a U.S. search warrant to give up customer data it has on a server in Ireland.

Speaking at Microsoft’s Washington, D.C., offices as part of a discussion on “Making the Legal System Compatible with the Cloud-Driven World,” a lawyer for the company, along with attorneys for Verizon Communications Inc., BSA | The Software Alliance and the Electronic Frontier Foundation, said they expect the Stored Communications Act dispute before a federal trial court in New York to face appellate court review, and they hope it will get the attention of lawmakers who can update the law.

The lawyers were Covington & Burling partner James Garland, who represents Microsoft, and Steptoe & Johnson partner Michael Vatis, who represents Verizon, as well as EFF staff attorney Hanni Fakhoury and BSA counselor Emery Simon.

Microsoft is arguing in the Southern District that a U.S. warrant doesn’t extend to data stored on servers located overseas. But the U.S. government has contended that the Stored Communications Act, enacted before the rise of cloud computing that links servers around the globe, allows it to access Microsoft data (NYLJ, July 14); the company has said the U.S. only can access such data through the cumbersome Mutual Legal Assistance Treaty process.

“You shouldn’t torture these existing laws to reach the outcome that the government wants,” Garland said.

In April, U.S. Magistrate Judge James Francis IV rejected Microsoft’s request to quash a U.S. warrant for customer data stored on a Dublin server (NYLJ, April 29). Microsoft appealed. Southern District Chief Judge Loretta Preska is set to hear oral arguments on Thursday.

Verizon and EFF, along with AT&T Corp., Cisco Systems Inc. and Infor Global Solutions Inc., have filed amicus briefs supporting Microsoft.

Vatis said he expects Microsoft to win its case. But the matter won’t be resolved unless Congress provides some clarity on how the Stored Communications Act should operate with today’s technology, he said. And, he noted, any congressional action could take some time.

“I think we’re going to end up in all likelihood being stuck in this place where the government is going to face very real problems in getting data abroad,” Vatis said. “Congress is going to be unwilling to act, because Congress can’t act on anything right now. This is probably going to fester for a while.”

Fakhoury said updating the Mutual Legal Assistance Treaty process to make it more efficient would help too. “If that process worked better, we wouldn’t be in this predicament,” he said. “We wouldn’t be debating this search warrant.”

Simon, whose group represents Microsoft and other major tech companies, said his organization’s members are put between a rock and a hard place under current law.

“They’re conflicted between the concept of being good citizens and wanting to do the right thing, and they’re conflicted between being used by law enforcement … to pursue law enforcement purposes,” he said. “But the price for that may be customer trust and the price for that may be a substantial change in their business operations domestically or internationally.”