A New York District Judge recently upheld a warrant requiring Microsoft to turn over to prosecutors in the United States, copies of customer emails that are stored on the company’s servers in Ireland.

Microsoft has challenged the warrant on a number of grounds.  It argues that a US court does not have authority to issue a search warrant to obtain such items located outside its territory.  It points out that the US authorities already have other means available to them, in particular, the mutual legal assistance treaty (MLAT) with Ireland. The US prosecutor did not attempt to use the MLAT process in this case.

US authorities argue that the applicable test is simply one of control.  If the US company has control over the entity abroad, then it can be compelled to obtain any information held by that entity abroad and provide it to US authorities.  This fails to take into account the reality that the non-US entity is subject to local legislation, including privacy and data protection laws.

If the US decision is allowed to stand, then existing rights under Irish and EU law afforded to customers of digital services in the EU will be at risk. Irish sovereignty is not respected. There is no doubt that a US warrant is not entitled to seek to obtain physical items located outside of the United States.  It would be absurd if the same did not apply to digital items.

Microsoft has argued in its court filings that the constitutional protections against unreasonable search and seizure would be infringed by allowing the US government access to personal information held in other jurisdictions. This represents a serious issue for technology companies and others.  Apple, Cisco, Verizon, AT&T and the Electronic Frontier Foundation have filed amicus curiae briefs in the US proceedings in support of the position adopted by Microsoft.

Unsurprisingly, Microsoft has filed an appeal in this case and the judge ordered a stay on proceedings to allow for an appeal.  Initially, there was no objection but subsequently, the US authorities sought that the judge lift the staying of her order and allow the warrant to be executed, arguing that Microsoft should not be allowed to appeal the decision unless and until it first refuses to comply with the warrant, which would put it in contempt of court. Microsoft rejects this contention and a decision on the point is awaited.

Companies should not be put in a position where they are being forced to comply with contradictory laws in this way. It is hoped that perhaps a coordinated effort on the part of authorities in Ireland and supported by those elsewhere in the EU can resolve the situation.