Netiquette IQ Blog of The Day - Microsoft and Privacy

 

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By Peter Roff Aug. 26, 2014 | 4:15 p.m. EDT US News and World Report

In a police state, the government thrives on information. Knowing who is doing what and with whom is a valuable commodity – even when the activity is generally benign.

America is far from a police state, but many of the security protections put in place after 9/11 as part of the Patriot Act and other laws are in direct conflict with what most people consider their basic right to privacy. These days – as was revealed when the National Security Agency intercepts became common knowledge – the government wants to know far too much and doesn’t want you to know that it knows.

Caught in the middle of all this are technology companies like Microsoft and Internet service providers like Comcast and Verizon who are constantly updating and improving the way communications like emails are sent, processed and stored. Thanks to the innovations they've brought to bear, emails now travel the globe in nanoseconds, passing through and stored on servers located just about anywhere in the world before they reach their intended recipient – and therein lies the rub.

The U.S. government recently made the case in federal court that American tech companies can be compelled to turn over customer emails “stored exclusively in company data centers in other countries,” Microsoft general counsel Brad Smith recently  penned for The Wall Street Journal.

The government’s theory is that these archival copies of emails become, after a period of time, business records of the company that owns the servers on which they exist. It’s a novel interpretation of the law – business records are considered less private than personal communications and are, as such, given less legal protection – that attempts to take advantage of a perceived technological loophole created by the advent of cloud computing.

In the case in question, the emails are located in a Dublin, Ireland, data center. According to Smith, “Microsoft believes you own emails stored in the cloud, and that they have the same privacy protections as paper letters sent by mail.” In the company’s view, the government can only have access to them “subject to the full legal protections of the Constitution’s Fourth Amendment.” That means the feds need a search warrant and, as too few people know, the U.S. government’s authority to conduct searches under warrant doesn’t exist outside of the United States.

On the surface, it looks like a complicated issue involving new forms of technology but it’s really very simple: no warrant, no emails – which is something that should also apply to text messages, voice mails and instant messages.

The fact that technology makes it easier for the government to have access to all kinds of records does not mean it’s a good idea to let them take a peek. Our system is founded on the idea that we have rights as citizens – which takes us back to the origins of the Fourth Amendment – and that the government cannot simply do what it wants. Our privacy is like our liberty. It must not be surrendered in the name of increasing our security for, as Benjamin Franklin might say if he were living today, we will soon discover we have lost them both.

Microsoft deserves considerable credit for carrying this fight into federal court. If necessary, one hopes, the company will carry it all the way to the United States Supreme Court. The stakes are high; if the government prevails, it sets a precedent that other countries can likewise rifle through servers in other countries looking for copies of emails sent between dissidents, anti-government activists, members of religious minorities and others whom, in a real police state, the objective is to suppress or eliminate.

The American public understands this instinctively but needs to get engaged in the process. According to an Anzalone Liszt Grover Research poll commissioned by Microsoft, 83 percent of U.S. voters “believe personal information stored on the cloud deserves the same protections as personal information stored on paper.” The only real question in that case is why the number is as low as it is. No one wants the government messing around in their private documents – especially when it cannot, apparently, keep track of its own. (Lois Lerner, I’m looking in your direction.) Personal privacy is a matter too important to be left to the discretion of the courts, even though there is every reason to believe that they will, ultimately, rule on the side of the citizenry. It’s up to the people to take action now. 

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 In addition to this blog, I have authored the premiere book on Netiquette, "Netiquette IQ - A Comprehensive Guide to Improve, Enhance and Add Power to Your Email". You can view my profile, reviews of the book and content excerpts at:

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