LAST WEEK, A US judge lifted a stay on the criminal search warrant for an email account controlled by the company’s servers in Dublin.
The application for the warrant had been made by prosecutors involved in a drug trafficking investigation.
Though the company had argued that the emails belong to its customers and that they were outside of US jurisdiction anyway, the judge ruled that Microsoft must comply because it is a US firm and controls the data.
Yesterday, Ireland’s minister for data protection Dara Murphy has said he is seriously concerned about the implications of this ruling and other EU governments and US companies have also piped up about it.
So, why is everyone so worried?
The main point is that handing over the data would mean the company would be in breach of Irish and European data protection law. Arstechnica reported that a statement from Microsoft on Tuesday said the company would defy the order because of privacy concerns.
We will not be turning over the e-mail.
Our own data protection minister said “the possible implications of this ruling are very serious for Ireland and the European Union”.
He pointed out that compliance with the warrant may result in Microsoft, and any other US companies with operations in the EU which are served with such warrants in the future, being in breach of the Irish data protection acts and the EU Data Protection Directive.
A number of companies including Apple have filed court briefs supporting Microsoft, according to The Guardian, as they are worried about losing business to foreign competitors who could be considered better guardians of privacy if the US prosecutors get what they want.
Forbes also reported that the Germany government said it will stop using data storage from American companies if the ruling is not overturned, in order to protect its citizens.
Murphy allowing the warrant to proceed would create “significant legal uncertainty” for Irish and EU consumers and companies regarding the protection of their data.
There already exists a legal process that US authorities could follow under the Mutual Legal Assistance Treaty. This would allow US prosecutors to apply to our courts for the release of the information.
However in this case, there has been no communication with Irish authorities, it is an individual decision made by a judge in one jurisdiction.
Dara Murphy said Ireland has no problem in assisting with criminal matters through an exchange of information, rather the problem is with the process being used in this instance because it would set a potentially dangerous precedent.
What are we doing about it?
Murphy met with the European Commission in Brussels earlier this week to discuss the implications of this ruling and the importance of ensuring that the data protection environment is “fully respected”.
He has also chaired an interdepartmental committee to discuss how to respond and will be seeking the advice of the Data Protection Commissioner as well as the Office of the Attorney General.
As we’ve already mentioned, Microsoft has said it will not be handing over the emails. This now means the company will be held in contempt of court but it will allow it to appeal the decision in due course.
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