Irish Govt wades into Microsoft’s legal data battle with the United States

23 Dec 2014

Ireland has waded into Microsoft’s battle with the US government over a search warrant to access data on a server stored on Irish soil. It has filed an amicus curiae brief to defend the privacy of Irish and European citizens.

It is the third time in the history of the State that the Irish Government has filed an amicus curiae brief in the US – one was filed in 2000 and the second in 2002.

The amicus brief process allows an interested party to file its views in a legal case that can then be taken into consideration by the courts.

The amicus curiae brief is being filed today in the case of Microsoft versus United States, which is currently before the United States Court of Appeals for the Second Circuit in New York.

In recent months, Ireland has found itself in No Man’s Land amidst a post-Edward Snowden battle between Microsoft and US authorities over whether data stored in data centres outside the US can be subject to search warrants.

Microsoft is currently challenging a US court-ordered warrant for data stored in its European Data Centre in west Dublin.

The filing of the amicus curiae brief has been confirmed by the Minister for Data Protection at the Department of the Taoiseach Dara Murphy, TD.

Dara Murphy, TD, Minister for Data Protection at the Department of Taoiseach

Speaking in advance of the submission of the brief to the court, Murphy said, “The right of individuals to the protection of their personal data is an essential foundation for modern society and the growing digital economy. We must ensure that individuals and organisations can have confidence in the rules and processes that have been put in place to safeguard privacy.”

In May, Microsoft successfully challenged a FBI user information request because the company claimed it violated the user’s right to privacy under the US Constitution.

The case related to a drug trafficking investigation and stemmed from a warrant a judge issued in December.

Defending Europe

Normally, such matters would be handled discretely through a mutual legal assistance treaty (MLAT) process, an agreement between two or more countries for the purpose of gathering and exchanging information.

However, the FBI in this instance took the unusual step of pursuing a search warrant for data stored on an overseas server in a data centre in Ireland.

“Ireland and the United States enjoy extraordinarily warm bilateral relations, resulting in excellent co-operation across a broad range of areas, including co-operation in criminal matters, which we value greatly and which are to the common benefit of citizens on both sides of the Atlantic,” Murphy explained.

“We have a mutual legal assistance framework in place for co-operation in criminal matters, which remains the preferred avenue for such co-operation, including for the transfer of data.”

The ramifications of the case could be significant as a precedent could be set that would allow law authorities not only in the US but across the world to issue search warrants for access to data stored in servers in Ireland.

This would not only impact on the data privacy of Irish citizens but also European citizens and the many IT companies that have data centre operations on Irish soil, including Google, Vodafone, Yahoo!, Amazon and many others.

 “As Minister for Data Protection I have given detailed consideration, from an Irish perspective, to the issues raised in this complex case. There are important principles of public policy at play.

“Having engaged in detailed consultation with my colleagues in Government, it was agreed that Ireland should submit an amicus curiae brief to the US court that focuses on the principles involved in this case and that points to the existing process for mutual legal assistance in criminal matters.”

Implications for data privacy in Ireland and Europe

Commenting on the Government’s decision Cathriona Hallahan, managing director of Microsoft Ireland, said the case has important implications for Ireland and Europe.

“There are a number of critical data-protection issues in play at the moment so having a dedicated minister and a newly established department focused on these matters is very important. We welcome the Government’s decision to engage formally in the process by filing an amicus brief. We believe that this step will send a strong signal to the US court about the importance placed on the matters in dispute.”

Microsoft’s case argues the US government cannot reach across international borders and retrieve a person’s email without respecting local privacy laws.

A survey carried out amongst people in Ireland in October highlighted the strength of support amongst the Irish public for the principles Microsoft is advancing in this case, with 89pc saying a foreign government should not be able to demand personal information stored in Ireland without liaising with the Irish Government.

Microsoft executive vice-president and general counsel Brad Smith said, “The Irish Government’s engagement underscores that an international dialogue on this issue is not only necessary but possible. 

“We’ve long argued that it’s best for law enforcement to move forward in a way that respects people’s rights under their local laws.”

US court image via Shutterstock

John Kennedy is a journalist who served as editor of Silicon Republic for 17 years