Bloomberg Law: Privacy & Data Security brings you single-source access to the expertise of Bloomberg Law’s privacy and data security editorial team, contributing practitioners,...
Microsoft Corp., which has resisted U.S. law enforcement demands for emails stored in Ireland, told the U.S. Supreme Court that Congress should resolve the matter by updating privacy laws on digital data storage.
U.S. companies are the world leaders in cloud storage, and a decision forcing Microsoft to turn over emails stored on servers abroad could erode trust in U.S.-based providers, the company said in its most recent brief to the court, filed Jan. 11. The brief sets out how it will proceed at oral arguments scheduled for Feb. 27, Microsoft spokesman Sean O’Brien told Bloomberg Law Jan. 12.
The case against Microsoft involves a law enforcement Stored Communications Act request to turn over customer emails stored in Ireland allegedly related to a drug case. Microsoft didn’t turn over the information because it believed the government’s order was an improper extraterritorial application of the statute.
The U.S. Court of Appeals for the Second Circuit ruled in Microsoft’s favor in July 2016—the only federal appeals court to hold that records stored in data centers located abroad are out of reach.
The case gives the Supreme Court an opportunity to clarify the reach of SCA orders. Cloud computing companies and others that store data overseas will look to the case for guidance on how and when U.S. law enforcement can access that data. Congress could clear up such questions by updating the over 30-year-old Electronic Communication Privacy Act (ECPA) and its subset SCA. Microsoft and the government agree that Congress should update both provisions.
Microsoft reiterated in its brief that “only Congress has the authority and tools” to overhaul the SCA to balance law enforcement, corporate, and citizen interests in stored data.
The Redmond, Wash.-based computer giant argued in its brief that a pro-government ruling would cause upheaval for cross-border privacy protections. It could also limit how the U.S. interacts with other countries in gathering important intelligence for law enforcement agencies, it said.
A ruling against Microsoft may give the U.S. “no basis to object when other countries reciprocate and unilaterally demand the emails of U.S. citizens stored in the United States from providers’ offices abroad,” according to the brief.
The Department of Justice declined to comment.
Some of the EU’s largest trade groups filed a friend-of-the-court brief Jan. 11, generally in favor of Microsoft’s arguments, that raised concerns over a potential pro-government ruling.
Such a ruling would force EU companies to choose between breaking U.S. law or violating European laws such as the EU Data Protection Directive, EU member country privacy laws, and the forthcoming EU General Data Protection Regulation (GDPR) taking effect May 25, 2018.
It could also result in more requirements to store data locally that would further limit access to data by law enforcement, according to the brief. Data localization laws require companies to store citizen data within a specific country.
These arguments echo a Dec. 13 EU friend-of-the-court brief filed by the EU Commission, the EU’s executive arm.
The case is U.S. v. Microsoft Corp. , U.S., No. 17-2, briefs filed 1/11/18 .
To contact the reporter on this story: Daniel R. Stoller in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Donald Aplin at email@example.com
Copyright © 2018 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)