Interesting distinctions. Does Microsoft own the servers directly, or through a subsidiary? Is Microsoft a direct participant in the action or just a third party?
If Microsoft is just a third party then their case is very strong.
If it was a Mexican _partner_ you'd be right. If it's a Mexican _subsidiary_ you are wrong.
A "subsidiary" is an owned asset. If you own an asset and it was in Brunei and you are here before the court, the court can order you to surrender that asset because you onw it and you are subject to the law where you are.
I don't have to subpoena you in Brunei if I've got you here.
Your only defense is if Mexican law makes it _illegal_ for you to move or copy the asset. In that case you'd have the "the court cannot require me to break the law" defense, which is not the same as the "it's far away" defense Microsoft is attempting.
For instance, lets say Fidelity (a french company) was required, in French court, to produce my financial records for the purpose of auditing Fidelity for alleged misconduct. And let's say Fidelity didn't want to do so. They could resist the production order under various U.S. laws such as HIPPA if my records incidentally contained medical information.
Likewise, if the E.U. privacy regulations covered some or all of these documents then Microsoft _could_ _have_ argued _that_ against the production order. Same for things like Attourney Client Privilege and any number of other things. I work for a company in the U.S. that is a wholly owned subsidiary of a brittish company. But the brittish crown and court cannot successfully supponea any of our non finincial documents because we do defense work and so U.S. law would prevent the export of that material. But the money stuff is fair game.
So too for paper documents. The "that would be illegal" defense cuts very fine. If the documents were in Afghanistan, and printed on pure marijuana leaf, then you could argue against shipping the original documents here because marijuana is illegal here. But the court could then require you to photocopy or fax the documents here on a more legal paper.
Now people have been talking "warrant" vs "subpoena" and I don't actually know for sure which thing is happening. A demand for surrender (subpoena) is different than a warrant to enter and search. This sounds like a subpoena not a warrant, as a warrant woudln't be served to Microsoft here, it would be processed by the foreign government and would be served _there_ by local law enforcement.
Given all that, "the old paper courts" are no different than the current paper courts. The "on a computer" bit is immaterial.
If Microsoft controls the documents personally, or through an agent, and a "subsidiary" is a kind of agent with lots of legal precident, the documents are fair game unless an actual law in the other jurisdiction says they are not. Paper or not.
The question is one of control not format of storage.
If I used a Saudi document escrow or storage service to store my documents, and they stored them in Botswana, there would be at least three jursidictions with the ability to subpoena those documents. Botswana, Saudi Arabia, and Wherever I live (so State of Washington, and U.S.A. federal jurisdictions).
It was _my_ choice to involve the Saudis and they were acting as my agent when they involved Botswana.
Sucks to be me if my documents are not actionable here but against the law there. I got those places involved in my business by doing business with them. That's the nature of actual, personal responsibility.
Really read this sentence: "In essence, President Barack Obama's administration claims that any company with operations in the United States must comply with valid warrants for data, even if the content is stored overseas."
This is a core tenant of law. It is the same legal principle that says the U.S. can prevent and punish a U.S. company from shipping heroin and sex slaves from Afghanistan to Brunei because they _are_ a U.S. company. It's also the same reason that a Brunei court can go after the same company.
If I go to mexico I am bound by Mexican _and_ U.S. Law. You can substitute any countries for any countries in this scenario.
This is also why I am mostly untouchable in Utah and Montana since I've never been in Utah, and I drove through Montana once. But that could change if I started a partnership with someone who lived in Utah. That relationship between them and I could bring many of my details under the jurisdiction of the Utah court.
You step in a river, you get water on you. You splash around in business in a particular country, the law of that country will stick.
Microsoft does business here. The dispute is a dispute here. That Microsoft stores the relevant material there, by accident of fate or by purpose of design, doesn't insulate that material from this court.
Where is the dispute, who created the material, and where are they, and where were they when they made the material. These are not very advanced questions.
It's more or less the same reason that a U.S. court can prosecute a U.S. citizen for "sex toruism" if they do the under-aged nasty in a land where that's supposedly okay, because they did it under the tacit protection of the U.S. because they could call their council and embassy via their citizenship and passport etc.
It's very, very hard to wash off a jurisdiction. One of the reasons the Swiss were so useful for so long is that they just wouldn't say what they were holding. Other jurisdictions could hold you responsible for what they could prove you "must have", but they couldn't ever get the swiss to _be_ that proof because they would simply remain silent.
There is no dispute that Microsoft has these documents. There is no dispute that Microsoft is a U.S. company. There is no dispute that the dispute is taking place in the U.S. So Microsoft's claim is _almost_ pro forma. They don't _want_ to cough up the stuff, but they likely have no belief that this defense will work.
Part of what Microsoft sells here is "if they mess with your bull they'll get _our_ horns, so trust us with your stuff". The very fact of the defense, despite its absurdity, is a feather in their cap.
But eventually the documents will be produced.
Microsoft is trying the "you can't hold me responsible for yesterday's shooting because the gun is in my other pants" defense.
The law has _always_ held that if you are before the court, everything relevant to the case is before the court.
If this were not the case then the Tobacco and Asbestos companies could have just said "all those meeting minutes and research records are stored in our warehouse in mexico so ha ha, you all lose." Any company or person, on any issue, could just mail the evidence out of state or out of country and get off scott free.
That just never happened.
Just because the evidence is "on a computer" instead of "printed on paper" doesn't make the "other pants" defense viable.
The court is not reaching across a border. Microsoft is _here_. Microsoft does business _here_. The complaint is _here_, and the court is _here_. The proper legal response to "the other pants" gambit is to tell the guy in his shorts to send someone to go get whatever it is from those pants and bring it back.
Criminals don't just "move" their assets to other countries, they "hide" them because if it can be found it's on the table.
Every court. Every country. Every topic. From the beginning of time.
This is no different.
This isn't a case of the U.S. reaching across a border. Microsoft is _here_. Microsoft is doing business _here_. The court _here_ is ordering microsoft _here_ do produce documents _here_. Microsoft's claims that the docuements are "in their other pants" (e.g. on a server in Ireland) is immaterial because microsoft is _here_ and _microsoft_ owns those documents.
Now _if_ this were a case where a U.S. Court was ordering a company that was not _here_, say an Irish company that was _there_ in Ierland called Irish Pizza Delivery Co. to cough up emails even though they don't do any business here... that would be a huge over-step. That over-step is because they are _there_, or more correctly _not_ _here_, and the court is _here_.
This is _exactly_ the same reason that the U.S. Tobacco companies and Asbestos companies could not dodge legal responsibility by just shipping their money and internal paperwork to south america as soon as people started coughing.
Some merchant categories that have been associated with high-risk activity include, but are not limited to:
Ammunition Sales Cable Box De-scramblers Coin Dealers Credit Card Schemes Credit Repair Services Dating Services Debt Consolidation Scams Drug Paraphernalia Escort Services Firearms Sales Fireworks Sales Get Rich Products Government Grants Home-Based Charities Life-Time Guarantees Life-Time Memberships Lottery Sales Mailing Lists/Personal Info Money Transfer Networks On-line Gambling PayDay Loans Pharmaceutical Sales Ponzi Schemes Pornography Pyramid-Type Sales Racist Materials Surveillance Equipment Telemarketing Tobacco Sales Travel Clubs
Appropriate Supervisory Responses
In those instances where examiners determine that a financial institution fails to have an adequate program in place to monitor and address risks associated with third-party payment processor relationships, formal or informal enforcement actions may be appropriate. Formal actions have included Cease and Desist Orders under Section 8(b) or 8(c) of the Federal Deposit Insurance (FDI) Act, as well as assessment of Civil Money Penalties under Section 8(i) of the FDI Act. These orders have required the financial institution to immediately terminate the high-risk relationship and establish reserves or funds on deposit to cover anticipated charge backs.
As appropriate, the examiner will determine if financial institution management has knowledge that the payment processor or the merchant clients are engaging in unfair or deceptive practices in violation of Section 5 of the Federal Trade Commission Act. In those cases where a financial institution does not conduct due diligence, accepts a heightened level of risk, and allows transactions for high-risk merchants to pass though it, it may be determined that the financial institution is aiding and abetting the merchants. This also could indicate a disregard for the potential for financial harm to consumers and, as a result, the financial institution may be subject to civil money penalties or required to provide restitution.
By publishing content in free access, every user grants it freedom to spread across the Internet and there's no way to stop that process. Even if we're talking about posts plagiarism we need official copyright proof in order to take actions. This is Internet after all. Everything belongs to everyone and any information becomes public sooner or later. VK Support Team.
I wonder if their location puts them in Crimea, the Ukraine, or Russia, and if their policy to ignore copyright laws plays a part in their decision.
I tell them to turn to the study of mathematics, for it is only there that they might escape the lusts of the flesh. -- Thomas Mann, "The Magic Mountain"
