US Warrants Don’t Reach Digital Content Stored Abroad

The Center for Democracy & Technology (CDT) today jointly filed an amicus brief in support of Microsoft’s position that the U.S. government cannot compel a company to turn over the contents of a user’s electronic data stored in another country. The case, which is being appealed to the Second Circuit Court of Appeals in New York, has broad implications for cloud computing and could set a dangerous precedent for reciprocity from other governments.

“A U.S. warrant should not reach electronic data stored outside of the country. If the U.S. government wins this case, it would severely undermine trust in the global cloud. It would certainly lead to other countries demanding, through their own domestic legal regimes, access to communications content stored in the U.S. on behalf of Americans and others,” said Nuala O’Connor, CDT President & CEO. “Because so much content is stored in the U.S., this would threaten users’ privacy rights worldwide,” she added.

In the case, Microsoft is appealing a ruling from a District Court that it was compelled to turn over user data from an account associated with its Dublin data center. Microsoft provided metadata associated with the account, but refused to turnover actual content stored in the Ireland data center.

CDT’s brief, which was filed with BSA | The Software Alliance, the U.S. Chamber of Commerce, the National Association of Manufacturers, and APT | The APP Association, details the threats to privacy, innovative cloud computing business solutions, potential economic impacts on global business, and the disregard for comity that the U.S. government’s position in the case presents.

“A process already exists to legally obtain electronic data stored abroad for law enforcement purposes. The U.S. has mutual legal assistance treaties (MLAT) with dozens of nations – including Ireland and the EU – and MLATs have been used effectively. While there is certainly room for improvement in the MLAT process, reform, rather than blatant disregard for global treaties, is the answer,” O’Connor said.

CDT’s views on the case and the need for MLAT reform are here. CDT urges the U.S. to work with its European and other partners to improve the MLAT system.