The U.S. Department of Justice has asked a New York court to vacate a stay on an order that would require Microsoft to turn over to the government certain emails held abroad.
The company, which had asked for the stay to pursue an appeal, may now have to refuse to comply with the order after the stay is lifted for its appeal to be acceptable by the appeals court, according to the plan outlined by DOJ to the court, citing a "jurisdictional defect."
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Judge Loretta Preska of the U.S. District Court for the Southern District of New York rejected Microsoft's appeal of an earlier ruling requiring it to turn over the emails stored in the company's facility in Dublin, Ireland, but ruled that the company will not have to turn over the emails while it pursues an appeal.(
In a letter to the judge on Tuesday, the DOJ, which had earlier consented to the stay, points to the issue that Judge Preska's decision was not a final, appealable order from the point of the view of the United States Court of Appeals for the Second Circuit.
Microsoft has, meanwhile, informed the district court that it has appealed to the 2nd Circuit from the order entered by the district court on July 31.
Describing the challenged aspect of the warrant as "the functional equivalent of a subpoena," the DOJ wrote in its letter that under 2nd Circuit precedent, "an entity challenging a subpoena cannot seek appellate review of a district court's decision upholding that subpoena unless it first defies the court's order to produce the subpoenaed records and then is held in contempt."
The DOJ has asked the court to lift the stay and direct Microsoft to comply with the July 31 order. If Microsoft refuses to comply with the order, then the court is requested to issue "a contempt order that would, in turn, be a properly appealable final order, which could be stayed on consent pending appeal." The DOJ said it also raised the option of jointly seeking from the court a final appealable contempt order, but Microsoft has chosen not to join in this request.
Microsoft's legal counsel Brad Smith wrote in a Twitter comment that the company did not agree with the government's interpretation that "any new step" is needed for the appeal.
A key issue in the case has been the interpretation of the warrant. U.S. Magistrate Judge James C. Francis IV of the New York court in April declined to quash a December warrant that authorized the search and seizure of information, including content and identifiers such as name and physical address, of a Web-based email account stored at Microsoft's premises.
The company has held that courts in the U.S. are not authorized to issue warrants for extraterritorial search and seizure. It objected to the warrant issued by the magistrate judge under the Electronic Communications Privacy Act, as it would authorize the U.S. government to search "any and all" of Microsoft's facilities worldwide, which besides violating international laws and treaties, would also spook customers outside the U.S. from using its cloud and other services.
Judge Francis held that a warrant under the Stored Communications Act, a part of the ECPA, was "a hybrid: part search warrant and part subpoena." It is executed like a subpoena in that it is served on the Internet service provider who is required to provide the information from its servers wherever located, and does not involve government officials entering the premises, he noted.