Home Government Tech Policy Microsoft email case appeal to come up in Supreme Court in Feb

The US Supreme Court will next month begin hearing an appeal brought by the US Government against a verdict which Microsoft obtained in a case involving emails stored on a server in Ireland.

The hearings are set to begin on 27 February and the court's verdict on the appeal is likely to handed down before the end of June.

In July 2016, the US Court of Appeals for the Second Circuit based in New York reversed a decision by a Southern District of New York court which had held Microsoft in contempt of court for refusing to hand over the customer emails.

And in January 2017, the US Court of Appeals for the Second Circuit, in a 4-4 decision, refused to rehear an appeal of its own decision.

A warrant was issued in 2013 for obtaining the emails, which reportedly were to do with an investigation into drug trafficking, and when Microsoft asked for it to be quashed, a judge refused to do in April 2014.

In a statement on Friday, Microsoft president Brad Smith pointed out that a large number of individuals and organisations who would normally have differing points of view had all filed amicus briefs agreeing with the company's position: that the emails should not be accessible from the US.

"On Thursday, 289 different groups and individuals from 37 countries signed 23 different legal briefs supporting Microsoft’s position that Congress never gave law enforcement the power to ignore treaties and breach Ireland’s sovereignty in this way. How could it? The government relies on a law that was enacted in 1986, before anyone conceived of cloud computing," Smith wrote.

The case has ramifications for other countries as well, as a ruling that the US Government can have access to data which is physically stored abroad, albeit on servers belonging to an American company, could give other companies in other countries carte blanche to ask for material they want.

Though the German government has not spoken out about the case, voices are now being heard in Berlin as amicus briefs were submitted to the Supreme Court.

“It is a very worrying development – there is a real danger that other countries will also seek access to companies’ data,” Ulrich Kelber of Germany's centre-left Social Democrats,a high-ranking parliamentary official in the justice ministry, told the Handelsblatt Global.

His counterpart for digital infrastructure, Dorothee Bär, agreed.

"If we let this through, then we wouldn’t have a problem in future if China or Turkey did it in order to get information on so-called enemies of the state living in Germany,” she said.

Said Smith: "If anyone had doubts that this case has international ramifications, they were laid to rest by the list of governments that last month or this week either joined amicus briefs or made public statements supporting key parts of Microsoft’s position.

"The list includes Ireland, France, the European Commission, European privacy regulators and members of the European Parliament, to name just some of those involved. Supreme Court cases almost never garner this level of engagement from foreign governments and officials."

The disclosures in June 2013 by former NSA contractor Edward Snowden, that the NSA was conducting blanket surveillance of all electronic communications has spooked many businesses.

A number of American companies have been affected and email and data storage providers are now offering to hold data in the customers' own location. For example, in March 2016, Microsoft announced that it would be setting up cloud services in a German data centre, offering Microsoft Azure, Office 365 and Dynamics CRM Online.

And to avoid any repeat of the Dublin imbroglio, Microsoft made it plain that it would have no access to the data unless permitted to do so; it said the keys, both logical and physical, that controlled access to customer data would be held by a German company T-Systems, a subsidiary of Deutsche Telekom, that would act as a data trustee.

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Sam Varghese

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A professional journalist with decades of experience, Sam for nine years used DOS and then Windows, which led him to start experimenting with GNU/Linux in 1998. Since then he has written widely about the use of both free and open source software, and the people behind the code. His personal blog is titled Irregular Expression.

 

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