The government has now filed its Second Circuit brief in the dispute with Microsoft (discussed here, here, and here), challenging key assertions by Microsoft and its many amici, and making a strong argument that a warrant issued under the Stored Communications Act (SCA) requires Microsoft to turn over emails in its custody and control, regardless of whether they are being held (in this case in Dublin).
After reading the government’s brief, I am increasingly convinced that nothing in the text, structure, purpose, or legislative history provides a definitive answer to the central issue in the case (a point that the government implicitly concedes), and that, as a result, the dispute really is a policy one. Should, or should not, the government be authorized to compel Microsoft and other ISPs to produce emails of other private communications located in a foreign nation? What are the ramifications of such an answer on the United States’ ability to protect private communications — including that of its citizens — stored within its borders? And what are the implications for the government’s ability (or lack thereof) to access sought-after evidence overseas?
Gonzalo San Gil, PhD. on 19 Sep 13"An output of the OAPEN-UK project, this guide explores concerns expressed in public evidence given by researchers, learned societies and publishers to inquiries in the House of Commons and the House of Lords, and also concerns expressed by researchers working with the OAPEN-UK project. We have also identified a number of common questions and have drafted answers, which have been checked by experts including Creative Commons. The guide has been edited by active researchers, to make sure that it is relevant and useful to academics faced with making decisions about publishing."
