back to article Roll up, roll up: Microsoft, those Irish emails and angry Feds

An appeals court in New York will hold an oral hearing in the Feds vs Microsoft battle today. The so-called Microsoft warrant case has dragged on for nearly two years as Redmond resists efforts to make it hand over customer emails stored in Ireland. The American Justice Department wants the emails as part of a drug-trafficking …

  1. Anonymous Coward
    Anonymous Coward

    Justice must be seen to be done.

    The NSA have unfettered access anyway.

    1. Steve Gill

      Maybe, but the NSA won't feed info to the Justice Department - their data feeds are one-way only.

      1. Anonymous Coward
        Anonymous Coward

        The feds just ask the NSA if it's important.

  2. Tromos

    Google?

    I note that Google are conspicuously absent from the list of companies siding with MS on this. Just another aspect of their contempt for European data privacy.

    1. Lionel Baden

      Re: Google?

      Not sure if Google do what the American government want or Vica Versa

    2. Anonymous Coward
      Anonymous Coward

      Re: Google?

      Or maybe Google are a tad miffed at the MS sock puppets trying to shaft them in the EU.

      1. big_D Silver badge

        Re: Google?

        Sockpuppets or no, if Microsoft lose the case, that will be the end of all cloud services with ties to the USA, they will only be able to operate domestically in the future...

  3. Arctic fox
    Headmaster

    It is really quite mindbending.

    "Concerned that unilateral American government access to data stored in Europe could frighten off European business, 30 tech companies including Verizon, Apple, Amazon, Cisco, Salesforce, HP, eBay, Infor, AT&T and Rackspace, have directly or indirectly weighed in on the side of Microsoft."

    Frighten off European business? It won't just be European business but business on a global basis. One of the few remaining areas in modern enterprise where the US has a big lead and the NSA and other Federal authorities seem intent on destroying it. What's the old saw? "With friends like that you don't need enemies."

  4. dogged

    This story must really some of our commentard friends.

    However I try, I literally cannot think of an angle where MS refusing to break EU law can be seen as evil, incompetent, data-stealing, bloated or even not very nice.

    Anyone who doesn't want them to win this one clearly has an agenda.

    1. Anonymous Coward
      Anonymous Coward

      This story must really some of our commentard friends.

      Yes I'm sure it must ... wait, what?

      1. dogged

        Written before coffee. The missing word is "frustrate".

        1. Keef

          Thank you for the phrase "Written before coffee".

          Hereinafter to be known as WBC.

          1. Keith Glass

            RE: WBC

            Seems a LOT of idiots use "WBC". Yes, I'm pointing at the inbred morons of the "Westboro Baptist Church", home of "God Hates IQs over 60. . . "

            1. dogged

              Re: RE: WBC

              I too hate everything before coffee.

              1. Captain Scarlet Silver badge
                Happy

                Re: RE: WBC

                hmm I like WBC lets increase it to:

                WBBHD - Written before banging head on desk

                WBHC - Written before having a cry

                WABOFHMM - Written after BOFH made me

                :S ok I suck at making stuff up

    2. LDS Silver badge

      It does for business reasons, not ethical ones...

      ... but for once they are good for citizens and customers too...

    3. Blane Bramble
      Pint

      @dogged

      Not often I find myself cheering Microsoft on, but they've got my respect and support for this battle.

      Have a virtual pint Microsoft.

  5. Pascal Monett Silver badge

    "Microsoft maintains that the data is secured under EU data protection laws"

    And for once, Microsoft is unequivocally right.

    The fact that Ireland deemed fit to alert a US judge that she has no right to disregard its sovereignty will figure as a reference in US Justice dickery.

    1. Anonymous Coward
      Anonymous Coward

      Re: "Microsoft maintains that the data is secured under EU data protection laws"

      Not under USA law. USA law specifies as per current interpretation of 14th amendment of the USA constitution (confirmed by supreme court cases) that:

      USA law is universal, no other law applies (or exists for that matter).

      So it does not matter who files what and how, the judge in the applicable USA court has _NO_ choice but to judge in FBI's favor. And he/she will. All the way to the Supreme court which will probably confirm the current standing of the 14th amendment.

      1. Blane Bramble

        Re: "Microsoft maintains that the data is secured under EU data protection laws"

        USA law specifies as per current interpretation of 14th amendment of the USA constitution (confirmed by supreme court cases) that:

        USA law is universal, no other law applies (or exists for that matter).

        Not sure how they reach that conclusion from the 14th Amendment which clearly only refers to the USA and it's individual States.

        1. Anonymous Coward
          Anonymous Coward

          Re: "Microsoft maintains that the data is secured under EU data protection laws"

          True. The amendment itself does not specify it. The issue arizes from the way courts have interpreted "jurisdiction" as requested by clause 1.

          Effectively, they have applied the widest possible interpretation to the opening phrase of that clause.

          It states: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof". This is interpreted (with 100 years of precedent to back it up) as "are subject to the jurisdiction thereof". This is also applied regardless of location.

          Later decisions of the supreme court granting person-like rights to corporation have resulted in this extended to corporations as well. So it is indeed "14th amendment as interpreted by the courts". This is further extended to anything and everything that can be proven to have as much as a toehold in the USA too.

          1. Pascal Monett Silver badge

            This is further extended to anything and everything that can be proven to have as much as a toehold in the USA too

            Indeed, and it is high time for that interpretation to get smacked down on the basis that the USA certainly wouldn't like a Chinese judge to reciprocate and order a Chinese subsidiary in the US to hand over sensitive email data. At least, I doubt the USA would agree.

            I do hope that the EU is going to find the balls somewhere to stop this nonsense. The Internet is a game-changer because of its globality. Local rules cannot be imposed over the Internet.

        2. Captain DaFt

          Re: "Microsoft maintains that the data is secured under EU data protection laws"

          "Not sure how they reach that conclusion from the 14th Amendment which clearly only refers to the USA and it's individual States."

          I, for one, offer my condolences to Ireland for being shanghaied as the USAs fifty first state.

      2. Dan Paul

        Re: "Microsoft maintains that the data is secured under EU data protection laws"

        May I point out that you are an insipid dolt of immense proportions because you have no clue about the 14th amendment and yet make yourself out to be an expert by commenting on it as you did.

        Please resist the urge to talk about a subject when it is obvious you don't understand it at all. Now read the amendment and tell us all where it says what you said it did.

        Amendment XIV

        Section 1.

        All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

        Section 2.

        Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

        Section 3.

        No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

        Section 4.

        The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

        Section 5.

        The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

        1. Ken Hagan Gold badge

          Re: "Microsoft maintains that the data is secured under EU data protection laws"

          I shall save everyone the effort:

          "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."

          The phrase "and subject to the jurisdiction thereof" is not required unless there exist persons born or naturalised in the US who are not subject to the jurisdiction thereof. Therefore, far from asserting the supremacy of US law, the sentence presupposes the opposite.

      3. Dan Paul

        Re: "Microsoft maintains that the data is secured under EU data protection laws"

        Your comment is just more uninformed anti-American bullshit. The 14th amendment applies to the USA, not foreign countries.

        1. bazza Silver badge

          Re: "Microsoft maintains that the data is secured under EU data protection laws"

          "Your comment is just more uninformed anti-American bullshit. The 14th amendment applies to the USA, not foreign countries."

          Well, kindly go and tell the US judicial system that. Apparently they think otherwise.

  6. Peter Gathercole Silver badge

    The concern will be...

    ...that eventually, if Microsoft sticks to it's guns (which in this case I hope it does), the Justice Department will have to take action, which might include some form of raids on Microsoft's US offices to 'liberate' either the records, or the access required to try to get them.

    That would trigger an almighty bun fight, possibly including an International Incident, which I'm not sure that the US Government would totally win.

    Imagine, if you will, a disenfranchised Microsoft, forced to decamp outside US borders to continue operations, so pissed off with the US government that it decided to invalidate all of the Government Windows, Exchange and Office 365 licenses. Would the US Government still be able to operate? Do you think that they have an alternative? Or do people think that they would try some legal shenanigans to try to seize Microsoft assets?

    Comments on a post here please. I'm interested in what other people think. Meanwhile, I'm buying a popcorn maker with enough corn to last a few years.

    1. Velv Silver badge

      Re: The concern will be...

      I like your thinking. There are small countries Microsoft could buy and then set their own tax rates, data rules, etc.

      Invalidate the US government licenses - depends if they were sold or leased. Probably couldn't revoke them, but they'd soon run out in the natural product lifecycle.

      Now, trolling, why doesn't the government just go open source? Two problems. The conversion is NOT cheap. Despite what small scale Linux geeks will tell you, it would cost Many billions to move desktops to Linux and Open Office, and 90% of all your other applications would need re-written. Second, you can't hide your own monitoring in the open source - by definition, the world has the source code, so any back doors in the closed source are gone in the open world.

      Pass the Toffee Butterkist...

      1. Velv Silver badge

        Re: The concern will be...

        Dear El Reg

        Can we get a Popcorn icon please :)

      2. oldcoder

        Re: The concern will be...

        Not "many billions".

        As for rewrites - only a few. And only the GUI part (of course, it would spur support for wine - which would suddenly handle everything).

        One thing that WOULD happen is that the loss of many millions per year would stop.

        1. Alan Bourke

          Re: The concern will be...

          What colour is the sky there, in la-la land?

          Only a few? Walk into an SME and make a list of what they need to operate. ERP, payroll. Or a design shop. Then show me the stable, maintained Linux versions.

          1. Peter Gathercole Silver badge

            Re: The concern will be... @Alan

            If the US Government decided to go Open Source, software houses would fall over themselves to port their software to Linux, and provide support. It's a cyclic dependency that prevents organisations moving. No applications, people won't install Linux. No Linux customer base, application writers will not provide applications.

            It only requires one seriously large customer to commit to Linux to break this cycle.

          2. Anonymous Coward
            Anonymous Coward

            Re: The concern will be...

            > Then show me the stable, maintained Linux versions.

            You make some good points.

            But here's the rub: in open/free source land, you only need to write them once and then they're available to everyone.

            Once you've gone down that road, there's no turning back to proprietary software,

        2. Swarthy Silver badge

          Re: Not "many billions"

          Actually, it may well be. The "software" that would need re-writing would be all of the Excel "databases" and Access "Applications" that were created every time somebody decided to automate a task with the only tools/knowledge they have to hand, namely MS Office. Also, every government office has at least one SharePoint "portal" and an ungodly amount of .Net. Mono would have to be resurrected, or everything Web would need to be re-written.

      3. Ken 16 Silver badge
        Trollface

        Re: The concern will be...

        Ireland! We're cheap. And easy.

      4. Peter Gathercole Silver badge

        Re: The concern will be... @Velv

        I seem to remember back in 2000, when the US DoJ was trying to force a split of Microsoft in two for OS and Applications, there were rumours about MS having a contingency plan to move out of the US, rather than complying with the order.

        Did we not see MS laying off a number of US developers a few months back? Was this associated with additional developers being hired in other countries? Maybe MS are putting in a contingency for such a move.

        Isn't starting rumours fun!

        Whilst I would love to see the US Government go Open Source, it's not as simple as just installing it on the machines. A huge amount of user, desktop and server administration in large organisations absolutely relies on MS Policies and Active Directory to function. So much, that the size of most estates cannot be managed by the people employed without it.

        For all that an OS like Linux is highly configurable using mechanisms like RPC, it pains me to say that this is not as slick or sophisticated as Windows. There are tools that will do something similar, but because of one of the strengths of Open Source, choice, there is no single dominant tool that can manage all Linux variants well (I know that something like Puppet will be mentioned in follow-up comments, but it's still evolving IMHO). Pretty much everything required can be done using Open Source, but not well enough to allow a like-for-like replacement in large organisations trivial. And that is even before you take into account user training.

        Realistically, it would take a multi-year program, tied into the hardware replacement cycle to migrate an organisation away from Windows.

      5. Shane McCarrick

        Re: The concern will be...

        "I like your thinking. There are small countries Microsoft could buy and then set their own tax rates, data rules, etc."

        Like poor bankrupt Ireland for example.........

        Oops..........

        1. Anonymous Coward
          Anonymous Coward

          Re: The concern will be...

          "I like your thinking. There are small countries Microsoft could buy and then set their own tax rates, data rules, etc."

          Or Greece and still have lots of change left over for somewhere sunny like Cuba

  7. Alister Silver badge

    The thing is, this case should never have come up.

    If the US Justice Department had followed correct procedure and asked the US government to ask the Irish government for access to the data, as per the existing agreements, then all would have been well.

    Instead, they chose to take the high-handed shortcut of demanding the data direct from Microsoft, who quite rightly (and perfectly legally) refused.

    So now they're trying to use bully-boy tactics to force Microsoft to do something against the law.

    This is the "Justice" Department, how ironic.

    1. Doctor Syntax Silver badge

      'This is the "Justice" Department, how ironic.'

      Not necessarily ironic. It's just an example of the Yes Minister theory of govt. departments as tombstones.

    2. Anonymous Coward
      Anonymous Coward

      > If the US Justice Department had followed correct procedure and asked the US government to ask the Irish government for access to the data, as per the existing agreements, then all would have been well.

      Not only that, they'd probably have the data by now as well.

      Makes you wonder what this is really all about....

    3. John Brown (no body) Silver badge

      "This is the "Justice" Department, how ironic."

      Yes, and despite being told many times what the correct procedure is they are too pig-headed and stubborn to admit they were wrong and just follow the agreed treaty procedure.

      On the other hand, maybe there is someone (or group) who are deliberately trying to bring this to court in this way to prove a point or have some other agenda.

      Aaaaand, on the gripping hand, it might just be simple incompetence!

      1. Peter Gathercole Silver badge

        Upvote for the reference to Moties.

  8. 0laf Silver badge

    I'm just surprised no one form the US Gov has stepped in to quietly talk in the ear of the court and point out the risk to US business interests from this. Especially when an established route to get the information exists.

    I'm glad MS is fighting the good fight here but I'm also quite clear they they're not doing it in my interests even if they are aligned with Microsoft's.

    1. Doctor Syntax Silver badge

      "I'm just surprised no one form the US Gov has stepped in to quietly talk in the ear of the court"

      The ear of the court should be inappropriate. A word in the ear of the prosecution would be a different matter.

  9. Anonymous Coward
    Anonymous Coward

    Laughable

    Your OS "Indexing" all emails, lots of resulting telemetry, lets make sure this sort of case never hits the press again.

    I don't give a shit if MS wins or not, the time for pretence at privacy is long gone.

    This, I predict, will go on just long enough to let the hoi polloi believe "MS really cares about privacy".

    Reg readers are by virtue of education excused from the pantomime.

    1. Arctic fox
      Headmaster

      Re: Laughable

      I am afraid old chap that any one who writes "the hoi polloi" without realising that "hoi polloi" means "the people" (and has therefore written "the the people") has demonstrated that he should be careful about making patronising references to them.

      1. Pascal Monett Silver badge

        Ah but it is a living language that we speak (or massacre, as may be the case), and shoehorning expressions into entirely improper grammatical constructs is what the Internet is made for.

        1. Arctic fox
          Thumb Up

          That I will accept as long as the poster concerned knows what he/she is doing!

          Nonetheless, thumbs up for a very witty and thoughtful comment.

      2. Anonymous Coward
        Anonymous Coward

        Re: Laughable

        Except that the author was writing in English, not Greek. And English, with its own special way of rifling thorugh other peoples' languages and stealing bits it likes, has appropriated "hoi polloi" as a phrase. "The hoi polloi" has additional meaning beyond simply "the the people", and has come to mean "the Great Unwashed", "the common folk", even "the plebs", to further rile classicists.

        The phrase came from outside English, where it had a different meaning. Now it is within English we will use and abuse it, and change its meaning over time. And there is nothing petty-minded "language purists" can do about it.

        So yah boo sucks to you!

        1. Arctic fox
          Thumb Down

          Re: Except that the author was writing in English, not Greek

          You felt that you had to post that as an AC? Dear me. You could not work out that I was responding to his snotty attitude to "The Great Unwashed"? Well that says more about you than it says about me. Moreover, I have a sneaking suspicion that you might be the same guy responding in the third person behind the aforementioned AC-mask.

          1. Anonymous Coward
            Anonymous Coward

            Re: Except that the author was writing in English, not Greek

            Well in comment attribution you are wrong, though I did laugh at the AC's content (and check my history in case I had blacked out).

            I does disappoint me that we get hung up on grammar or semantics in a post about the basic rights to privacy.

            That said I was not particularly trying to be condescending to "people" generally I was just trying to highlight we all have a limit of attention, and if that is filled with noise big issues can slip by.

            Recall the "good day to bury bad news"? sometimes it's is seen as advantageous to have something to draw attention from an unwelcome issue, there is a massive privacy issue ongoing right now, focus on my questionable English if that is the most important aspect to your life.

            Most people here won't have a part in, or could hope to have much affect on this MS vs US Gov case but they could try to resist personal monitoring and tracking though (should that be seen as important to anyone obviously).

        2. Anonymous Coward
          Anonymous Coward

          Re: Laughable

          In much the same way you will find places in Wales such as Bryn Hill, I'm sure there are plenty of other examples from UK and other places

  10. Destroy All Monsters Silver badge
    Trollface

    Someone from the Kagan family willl be in touch

    Last December, Ireland reminded the New York court: "Ireland is an internationally-recognised sovereign nation state ... and does not accept any implication that it is required to intervene into foreign court proceedings to protect its sovereignty."

    Uh..oh... someone is looking at a slight insurrection emerging from the US embassy and the democracy-promoting US NGOs.

  11. Billy Whiz
    Mushroom

    Here's a way ....

    ... for the Irish government to solve the problem. Get An Garda Síochána to issue an arrest warrant and start extradition proceedings against Judge Loretta Preska under Irish sedition laws. The should get the US courts' attention.

    1. Shane McCarrick

      Re: Here's a way ....

      I think you'll find the Irish 1939 Offences Against the State Act- is what you have in mind.........

      A bit ironic seeing as it was brought in by Dev- a native New Yorker........

      I particularly like how it applies to "associations, societies, and other organisations or combinations of persons of whatsoever nature or kind, whether known or not known by a distinctive name". I guess that should very helpfully include the good judge, and indeed the FBI or the NSA- should anyone really want to throw a spanner in the works...........

      And under Article 6- Usurpation of Functions of State- " Every person who usurps or unlawfully exercises any function of government, whether by setting up, maintaining, or taking part in any way in a body of persons purporting to be a government or a legislature but not authorised in that behalf by or under the Constitution, or by setting up, maintaining, or taking part in any way in a purported court or other tribunal not lawfully established, or by forming, maintaining, or being a member of an armed force or a purported police force not so authorised, or by any other action or conduct whatsoever, shall be guilty of felony and shall be liable on conviction thereof to suffer penal servitude for a term not exceeding ten years or to imprisonment for a term not exceeding two years."

      So- we could jail the judge for a term of up to 2 years and/or apply a 10 year sentence of penal servitude...........

      We also have obstruction of government- with similar terms associated with it- and a long and meandering list of sanctions which would apply to "any organisation deeming itself a military organisation seeking to undermine the authority of the Irish Constitution"

      You know- this could get nasty.

      If anyone is interested- the Act is published here: http://www.irishstatutebook.ie/eli/1939/act/13/enacted/en/print

  12. bazza Silver badge

    Declaration of War?

    In some ways seeking to impose one's own laws on another country is tantamount to a declaration of war. Imposition of law is control of that country.

    If MS lose this case it will be a pretty bad advert for the USA. Want to run an internationally significant company? Don't base yourself in the USA, lest your international business evaporates.

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