Privacy & Cybersecurity Law Blog

On December 15, 2014, Microsoft reported the filing of 10 amicus briefs in the 2nd Circuit Court of Appeals signed by 28 leading technology and media companies, 35 leading computer scientists, and 23 trade associations and advocacy organizations, in support of Microsoft’s litigation to resist a U.S. Government’s search warrant purporting to compel the production of Microsoft customer emails that are stored in Ireland. In opposing the Government’s assertion of extraterritorial jurisdiction in this case, Microsoft and its supporters have argued that their stance seeks to promote privacy and trust in cross-border commerce and advance a “broad policy issue” that is “fundamental to the future of global technology.”

The Government issued a domestic search warrant to Microsoft under the Stored Communications Act, demanding that Microsoft hand over emails that it maintains and controls in a Microsoft data center in Dublin. Microsoft challenged the warrant but the U.S. District Court confirmed the Government’s right to obtain these emails. Microsoft then appealed to the Second Circuit on December 8, 2014.

According to Microsoft, the company stores private communications in data centers close to their customers for legitimate business reasons, in this case in its Irish datacenter so that European customers can retrieve their information more quickly and securely. Microsoft’s position in this litigation, now officially supported by leading stakeholders and experts, is that “the U.S. Government’s unilateral use of a search warrant to reach email in another country puts both fundamental privacy rights and cordial international relations at risk.”

Specifically, Microsoft and the amici are making the following key points:

• The U.S. Government should more appropriately use treaties to obtain the information it needs from other countries, which will help ensure the application of the relevant legal protections available in those countries.
• Allowing the U.S. Government to access emails in foreign jurisdictions would have a negative impact on foreign customers’ trust in American companies and undermine the customers’ privacy rights.
• The U.S. Government’s policy on extraterritorial jurisdiction also would have a negative impact on U.S. customers if foreign countries adopted the same approach towards emails held in U.S. datacenters.
• The policy would undermine the efficiencies of cloud computing.
• The policy would undermine legal protections for reporters’ email that are housed in foreign jurisdictions.

Microsoft also called on the Obama Administration and the U.S. Congress to “engage in a holistic debate on the solutions to these issues and find a better way forward.”