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Purdue University - Discovery Park
Center for Education and Research in Information Assurance and Security

How far do warrants reach in “The Cloud”?

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There is a case currently (early 2018) pending before the Supreme Court of the United States (SCOTUS) addressing if/how a US warrant applies to data held in a cloud service outside the US but run by a US entity.

The case is United States vs. Microsoft, and is related to interpretation of 18 U.S.C. § 2703 — part of the Stored Communications Act.

The case originated when US authorities attempted to serve a warrant on Microsoft to retrieve email of a user whose email was serviced by MS cloud servers in Ireland. Microsoft asserted the data resided in Ireland and the US warrant did not extend outside the US. The US contends that the warrant can be fully served inside the US by Microsoft and no foreign location is involved. Microsoft sued to vacate. The district court upheld the government, and found Microsoft in contempt for not complying. On appeal, the 2nd Circuit Court of Appeals overturned that decision (and the contempt citation), and remanded the case for reconsideration. The US government sought and obtained a writ of certiorari (basically, sought a hearing before SCOTUS to consider that appellate ruling). The oral arguments will be heard the last week in February.

The decision in the case has some far-reaching consequences, not least of which is that if the warrant is allowed, it is likely to drive business away from US service providers of cloud services — clients outside the US will be concerned that the US could compel production of their data. At the same time, if the warrant is not allowed, it could mean that service providers could spring up serving data out of one or more locations that routinely ignore US attempts to cooperate on computer crime/terrorism investigations. (Think of the cloud equivalent of banking havens such as the Caymen Islands, Vanuatu, and the Seychelles.) Neither result is particular appealing, but it seems (to me) that under current law the warrant cannot be enforced.

I signed on to an amicus (friend of the court) brief, along with 50 other computing faculty. Our brief is not explicitly in favor of either side in the dispute, but is intended to help educate the court about how cloud services operate, and that data does actually have a physical location.

If you are interested in reading the other briefs — including several from other amici ("friends of the court”) there are links from the SCOTUS blog about the case. It is interesting to note the perspectives of the EU and Irish governments, trade associations, former law enforcement and government officials, and more. The general consensus of the ones I read seems to me to favor Microsoft in this case. We shall have to see if the SCOTUS agrees, and whether Congress then acts to set new law in the area, if so.

This case is an example of one of the difficulties when we have few barriers in network communications, and the data flows across political borders. It is, in some sense, analogous to the “going dark” concerns of the FBI. How do we maintain privacy in an arena where bad actors use the technology to “hide” what they do, potentially forever beyond reach of law enforcement? Furthermore, how do we enforce the rules of law in an environment where some of the legal authorities are ideologically opposed to privacy rights or rule of law as envisioned by other authorities? It is also related to searches of computing devices carried across borders (including cell phones), and similar instances where the attempt has been made to equate the presence of end points or corporate operators as somehow including the data accessible via those end points. All of these are problems that the technology aggravates but are unlikely — if not impossible — to solve by technology alone.

Interesting times, no matter which side of these matters one is normally likely to support.

This is the 3rd amicus brief before the SCOTUS to which I have been a signatory, and one of 10 overalll. This is very different from publishing academic papers!)

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