Jul 232014
 

Victoria Espinel of BSA/The Software Alliance writes about DOJ’s position that a warrant served on Microsoft requires it to produce all of the customer’s emails stored on Microsoft servers – even those outside the U.S.

… That astonishing overreach [by the government] is based on a legal fiction—that no search occurs until the digital data are transferred to the United States. But that is simply wrong as a technical matter, because the foreign server must be searched to identify the information at issue and to transfer it to the United States. And it is wrong as a legal matter as well: No one would argue that physical papers stored in Ireland, France or Hong Kong had not been “searched” if they were identified, bundled up and sent to the United States.

The government’s expansive argument also violates a second fundamental legal principle, known as “comity,” which requires U.S. courts to give appropriate respect to the laws and interests of other nations when addressing questions about the application of U.S. law abroad.

Read more on National Law Journal.

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