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Microsoft: Irish data disclosure case 'fundamental to the future of global technology'

The support that Microsoft has received from other technology and media organisations for its challenge against a US court ruling that ordered it to disclose EU-held customer data to US authorities shows that the case is "fundamental to the future of global technology", the technology giant has said.18 Dec 2014

Earlier this week 28 technology and media companies, 23 trade associations and advocacy groups and 35 professors of computer science filed legal papers in support of Microsoft's opposition to US court rulings earlier this year which said that US authorities' search warrant powers apply to customer information held outside of the US.

Amazon, Apple, Cisco, eBay, HP and Verizon are among the technology companies to have filed 'friend of the court' briefs before the US court in New York that is handling Microsoft's appeal. The UK's Guardian newspaper and US media giants such as CNN, Fox News and the Washington Post have also contributed to the briefs.

Brad Smith, general counsel and executive vice president of legal and corporate affairs at Microsoft, said: "Collectively these briefs make one conclusion unmistakably clear. This case involves not a narrow legal question, but a broad policy issue that is fundamental to the future of global technology."

Data protection law expert Marc Dautlich of Pinsent Masons, the law firm behind Out-Law.com, said: "Following the Snowden revelations, access by government agencies to individuals' personal data is now an enduring feature of the political agenda. Some EU law makers seek a significant extension of the jurisdictional reach of EU data protection laws under the draft General Data Protection Regulation, which would apply not just to businesses within the trading bloc but to those based outside of the EU that process the personal data of EU citizens – notably internet companies based in the US."

"The 'broad policy issue' is undoubtedly important for some US tech companies, but as far as the appeal process through the US courts is concerned, it will be interesting to see how much mileage there is in the actual legal question at issue," he said.

On 4 December 2013 US magistrate judge James Francis granted US authorities a warrant, under the US' Stored Communications Act, which authorised the search and seizure of information “associated with a specified web-based e-mail account that is stored at premises owned, maintained, controlled or operated by Microsoft Corporation”.

According to the court documents in the case, Microsoft "complied with the search warrant to the extent of producing the non-content information stored on servers in the US" but after determining that the content of the emails was stored on servers hosted in Dublin, Ireland, it "filed the instant motion seeking to quash the warrant to the extent that it directs the production of information stored abroad".

Judge Francis rejected Microsoft's initial appeal in April and his ruling was upheld in July by US district court judge Loretta Preska. However, Microsoft has already said it is willing to take an appeal all the way to the US Supreme Court if lower courts do not support its position.

In Microsoft's latest blog on the case, Smith said: "Tech companies such as Microsoft for good reason store private communications such as email, photos, and documents in datacenters that are located close to our customers. This is so consumers and companies can retrieve their personal information more quickly and securely. For example, we store email in our Irish datacenter for customers who live in Europe."

"We believe that when one government wants to obtain email that is stored in another country, it needs to do so in a manner that respects existing domestic and international laws. In contrast, the US 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. And as today’s briefs demonstrate, the impacts of this step are far-reaching," he said.

"Law enforcement plays a vital role in investigating crimes and keeping our communities safe. We are not trying to prevent them from playing this role, but we believe reforms are needed that ensure that they do their work in a way that promotes vital privacy protections and builds the trust and confidence of citizens in the US and around the world. The challenges are not unique to the United States. But the US government has the opportunity to help lead the way in devising and enacting much needed reforms," Smith said.