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Have Lynch and Europol just set in motion a solution to the Microsoft problem?

Posted by on September 16, 2015.

LynchEuropolIt’s a conundrum. Microsoft is caught between two masters: Europe, where it is desperately seeking to increase marketshare against the dominant Google; and the US, its homeland overlord that it must, and indeed would like to, honor and obey.

This conundrum is illustrated by Microsoft’s refusal to simply hand over a European customer’s emails from a server in Ireland to US law enforcement. The FBI wants the emails of a suspect. There are legal procedures to make this happen. The FBI fears these procedures would take too long.

Instead it has stretched the meaning of ‘search warrant’ to beyond credibility (but been supported by the US courts). It has simply demanded, under search and seize laws, that Microsoft hand over the emails. In what has become a cause celebre, Microsoft declined, the courts ruled that it must, and Microsoft has appealed.

It is, in my non-legal opinion, 99% certain that eventually Microsoft will be forced to comply with its government’s wishes. But the process satisfies neither party. For Microsoft, being seen to protect its customers is good, but ultimate failure will be far worse. For the government, coming over as the global bully boy trampling over the sovereign rights of other countries might seriously affect the trade of US internet companies. We have reached the point where there can be no winner.

But there may be a solution. Today US Attorney General Loretta E Lynch is in Europe visiting Europol. There has been no suggestion that Microsoft has been discussed — but it would be pretty silly if it hasn’t been. Among all the fluff, the one sentence that stands out is this from AG Lynch:

I am also very happy to announce today that – with the support of Europol and Eurojust – we will be temporarily assigning a prosecutor from our Department’s Criminal Division to sit in Eurojust and work with EC3.

With a US prosecutor sitting and working in Europe with the European police and justice systems, there can be no excuse for the US government to try to bypass European legal procedures. It will be able to get what it wants as fast as it wants.

Of course there is a downside — we’ll be back to the totally covert shenanigans the we have become accustomed to…

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Submitted in: Expert Views, Kevin Townsend's opinions, News, News_legal, News_politics |