CDT Supports Microsoft’s Appeal to Government Demand for Data Stored Abroad

Today, a federal appeals court in Manhattan heard oral arguments in Microsoft’s challenge to the US government’s warrant to compel the company to disclose a customer’s email stored in a data center in Ireland. The Center for Democracy & Technology (CDT) believes that neither a warrant nor a subpoena is sufficient to reach data stored outside the US and sides with Microsoft in the case.

The case raises the important and complex question of what rules apply when one country demands that a service provider with a presence in its territory grant access to content stored outside the country. In the hearing, the US government argued that warrants a US judge issues can reach data that a US service provider stores anywhere in the world. Microsoft argued that for data stored outside the US, the US government must trigger the Mutual Legal Assistance Treaty (MLAT) with a foreign country, and in this case, with Ireland. This would mean the data is pursued – and protected – under Irish Law.

CDT, along with a number of civil society organizations and corporations filed a brief in support of Microsoft in the case. The Government of Ireland is also supporting Microsoft’s position.

“If the US government wins this case, we expect that other countries will argue that their legal process reaches content that providers store in the US, including countries that have lousy surveillance laws, or that don’t follow the laws they do have.  Welcome to the ‘Wild West,’” said Greg Nojeim, CDT Director of the Freedom, Security, and Technology Project.

Welcome to the ‘Wild West.’

“The economic consequences of this case could be huge. It could make it even more difficult for US providers to sell services abroad when the US government claims special rights to access content conveyed over those services.  Many potential customers will conflate such access with NSA surveillance, to the detriment of US cloud providers,” Nojeim added.

CDT developed an in-depth analysis of the case and has commented on legislative efforts to address the issue, most notably the LEADS Act. CDT will continue to offer detailed analysis as this important case evolves.