We veer a tad off topic today from our usual hash of ERP, software and biz postings to digress for a moment into a timely topic: Who owns your emails? The topic was brought to light last week in an editorial in the Wall Street Journal penned by Microsoft general counsel Brad Smith, explaining why “We’re Fighting the Feds Over Your Email.”
The issue at stake is who owns your email, which today is often largely stored in the cloud. Is it you… or the company who stores it, like say, Google or Microsoft? Microsoft was sent a search warrant last year seeking a consumer’s emails as part of a drug investigation. The emails were stored in Ireland at a data center. Microsoft’s position is that you own your emails stored in the cloud, not them. For the government to get them, they must be subject to Fourth Amendment protections – and thus require a warrant. But by case law, warrants cannot reach beyond U.S. territory.
The government is taking the position that since the emails were stored in the cloud, they cease to belong exclusively to you. They claim such emails are “the business records of the cloud provider” according to Smith’s letter to the Journal.
Courts have long made distinctions between “business records” and an individual’s “personal communications.” So it can, in Smith’s example, subpoena UPS to show where a customer shipped packages, but must “establish probable cause and get a warrant from a judge to look at what a customer put inside.” Even under current phone rules, the feds can obtain the metadata about calls in a phone company’s records but it’s a farther legal reach to listen to actual conversations.
Microsoft’s position is that such legal protection for personal conversations should be “preserved for new forms of digital communications” including emails and texts. Recently, a Supreme Court ruling unanimously upheld the notion that police must get a warrant from a court before searching a cell phone, since it may contain “the sum of an individual’s private life…”
A recent poll by a research firm found 83% of American voters believe personal information stored in the cloud “deserves the same protections as personal information stored on paper.” The question becomes one of balancing the advancement of technology with the “timeless values” (Smith’s words) that should endure. His concluding hope in defending Microsoft against the feds’ intrusion is that “digital common sense should prevail.”
The government’s position would appear to prefer that it be able to obtain emails stored in in a European data center. As Smith notes, “It’s hard to believe that the American people will blithely accept that foreign governments can obtain their emails stored in U.S. data centers without letting them know or notifying the U.S. government.” Yet the U.S. government wants to do exactly the same in reverse.