“See you in court!”

Aaargggh, no thanks, that sounds like a mighty stressful and bank balance-busting exercise in futility to me.

But then again, I’m not Microsoft so perhaps I’ve got good reason to not want to end up in front of a judge. Not that I’ve done anything wrong of course. Honest. Just ask GCHQ – its minority report division already knows I’m a saint now and will continue to be so in the future too.

Microsoft, however, is so keen to have its say in court that it has invited proceedings upon itself. Kind of.

After US authorities made demands over emails stored on a Microsoft server in Dublin, Ireland, the software giant said no dice and has now taken the unusual step of asking the US government to hold it in contempt of court so that it can accelerate the privacy-based case onto the appeals stage.

The case centres around a series of emails which are said to to be relevant to an investigation into drug trafficking but, despite the potential gravity of that case, Microsoft disagrees with the government view that data held overseas is there to be grabbed, instead suggesting that US jurisdiction should terminate in line with its physical borders.

An outstanding warrant, about which almost nothing is known publicly, has caused Microsoft much consternation with the company promising to appeal any adverse ruling “promptly.” The company objected to the search on many levels, including the fact that it believes an existing precedent applies:

“The U.S. has entered into many bilateral agreements establishing specific procedures for obtaining physical evidence in another country including a recently-updated agreement with Ireland. We think the same procedures should apply in the online world.”

In a blog post, the company also highlights how it is taking the moral high ground in making a stand for privacy and also cites backers such as Apple, Cisco and the EFF.

None of this is to say that Microsoft feels it is above the law though, merely that it believes that government should play by the rules and follow established processes:

“We appreciate the vital importance of public safety, and we believe the government should be able to obtain evidence necessary to investigate a possible crime. We just believe the government should follow the processes it has established for obtaining physical evidence outside the United States.”

Now, after some procedural confusion, US District Judge Loretta Preska has found Microsoft in contempt, allowing the company to proceed with its appeal immediately. Meanwhile Microsoft has come to an agreement with the Department of Justice that allows it to escape punishment for that ruling, though the government said it retains the right to seek sanctions at a later date if it feels it necessary to do so, with the full stipulation saying:

  1. Microsoft has not fully complied with the warrant, and Microsoft does not intend to comply while it in good faith seeks further review of this Court’s July 31 decision rejecting Microsoft’s challenge to the Warrant.
  2. While Microsoft continues to believe that a contempt order is not required to perfect an appeal, it agrees that the entry of an order of contempt would eliminate any jurisdictional issues on appeal. Thus, while reserving its rights to appeal any contempt order and the underlying July 31 ruling, Microsoft concurs with the Government that entry of such an order will avoid delays and facilitate a prompt appeal in this case.
  3. The parties further agree that contempt sanctions need not be imposed at this time. The Government, however, reserves its right to seek sanctions, in addition to the contempt order, in the case of (a) materially changed circumstances in the underlying investigation, or (b) the Second Circuit’s issuance of the mandate in the appeal, if this Court’s order is affirmed and Microsoft continues not to comply with it.

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