I am not a lawyer, but it seems to me that an American court has the power to demand that an American citizen produce an item or information under his control, even if it happens to be in another country (e.g., a man getting divorced can't drive his car and all his gold and jewelry into Canada to shield them from his ex-wife). I imagine that most other countries would behave similarly: being within their borders and subject to their jurisdiction, they can compel someone to do something.
If that's indeed the case, then it seems that an American corporation—a legal person with a presence in the United States—may be compelled by a court to produce items or data it controls outside of our borders.
The thing we need to do is to limit the power of the subpoena generally.
> it seems to me that an American court has the power to demand that an American citizen produce an item or information under his control, even if it happens to be in another country
Does the American government have the power to compel someone to violate foreign law in order to produce an item held in a foreign country? Can the American government force an American citizen to violate Greek law and take a million Euros out of Greece for that hypothetical divorce settlement?
This is the scenario in question here. It is illegal in Ireland for Microsoft to provide the requested information to the US Government. The data resides in Ireland so complying would require performing an illegal act in Ireland. Does US law for some reason override Irish law? Can the US government compel Microsoft to violate Irish law?
You are not a lawyer, if some one does it they aren't forced to drive the car or jewelry back they might be sued for hiding assets in a civil court, this isn't the government suing people, divorce isn't a criminal procedure.
In any case Corporations aren't people, and MSFT servers in Ireland probably belong to MSFT IE/EU which is a separate legal entity (which is why MSFT can say we don't have it).
There is also a difference between a warrant an, order and a subpoena in this case and 1000's other issues that I also as some one who's not a lawyer can't even begin to imagine.
But you know who is a lawyer, MSFT's head legal council and i hear he also got a bunch others with him so i would think they would figure out how to handle this.
But in general various agreements and treaties govern how law enforcement agencies and legal systems of different countries interact, some countries might accept a signed US court order (Canada for example), for others you will have to go through the extradition process codified in a treaty, and the list goes on and on and on.
*P.S.
With several exception a court can't compel you to do anything if you violate a Subpoena you will be found in contempt and maybe charged for that, and while you can call that compelling It's not since the court will not actually force you to do anything.
This gets better. See, Microsoft has an entity in Estonia. Now, how about an Estonian court compelling Microsoft Estonia to provide Obama's private email? Would anyone even treat such a thing seriously?
It gets more interesting where the American companies own subsidiaries incorporated in other countries. Can a US court compel Apple's Irish subsidiary (for instance) to release data?
If that's indeed the case, then it seems that an American corporation—a legal person with a presence in the United States—may be compelled by a court to produce items or data it controls outside of our borders.
The thing we need to do is to limit the power of the subpoena generally.