Microsoft resists US government warrant for foreign e-mail data

One of the world’s most prominent e-mail providers, Microsoft, has announced its resistance to a US government warrant seeking disclosure of e-mail data held in a data centre in Ireland.

Privacy: Microsoft resists US government warrant for foreign e-mail data ©-cirquedesprit-Fotolia

Privacy: Microsoft resists US government warrant for foreign e-mail data ©-cirquedesprit-Fotolia

Privacy at risk

The US government says that the e-mail data is required in connection with a drug smuggling investigation.

In a court document, published by the Washington Post, Microsoft has expressed its objections to the warrant stating that US warrants are confined to US territory and that searches for e-mail address located outside the US would violate international law.

Microsoft also argues that if the US government accesses foreign e-mail data, it could have serious economic consequences for the company and damage the business’ image abroad.

Disclosure order or search warrant

The underlying legal question is whether the US government’s request stems from a search warrant or a disclosure order. Until now, the US courts have seen the warrant as a “hybrid”, it being issued like a search warrant but executed like a disclosure order.

Microsoft argues that a search warrant cannot be executed outside the USA and that a disclosure order must be addressed to the owner of the data, i.e. the e-mail user.

Customer protection

To settle the problem, Microsoft has demanded that the US government abide by its international obligations and use the framework laid down in a Mutual Legal Assistance Treaty concluded between the USA and Ireland. In this case, the relevant documents would have to be submitted to an Irish judge for assessment under Irish law.

Location of data

The US government maintains its position that the location of personal data is irrelevant. It argues that criminals could lie to Microsoft about their location, leading to their data being stored abroad and to them avoiding criminal prosecution.

Christian Solmecke is a partner at the law firm WILDE BEUGER SOLMECKE. He is the author of numerous legal publications in the area of internet and IT law. He is also an associate lecturer for social media law at the Cologne University of Applied Sciences.

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