Microsoft still won’t hand over private email data to the US

Lee Bell

1 Mar, 2018

Microsoft still won’t hand over private email data to the US that sits at the focus of a long-running court case with the US government.

The case, which has been ongoing since 2013, revolves around information related to a US criminal case that’s held in Microsoft’s Dublin data centre. Despite the fact the data resides in the Republic of Ireland, the US Department of Justice (DoJ) has demanded the company hand it over, as it’s an American entity. The suspects in the case are also believed to be American.

In January 2017, a US appeals court rejected a government appeal to rethink its denial of the attempts to get Microsoft to hand over the email, which has something to do with a drug trafficking prosecution.

The EU intervened in the case in December to ensure the US Department of Justice (DoJ) understands European data laws. The EU claimed that because the data would have to be moved from Europe to the US, it would come under EU data protection laws.

At the time, the European Commission submitted an amicus brief – information filed by non-litigants to give the court a better understanding of a matter – to help it make a decision about whether the data should be handed over or not.

This week, however, liberal justices Sonia Sotomayor and Ruth Bader Ginsburg wondered why Congress isn’t regulating “this brave new world” of cloud storage, rather than expecting the nation’s top court to interpret the legality of a warrant obtained under the dusty old 1986 Stored Communications Act.

“[In 1986,] no one ever heard of clouds. This kind of storage didn’t exist… If Congress takes a look at this, realising that much time and… innovation has occurred since 1986, it can write a statute that takes account of various interests,” said Justice Ginsburg in an oral argument filling.   

“Wouldn’t it be wiser to say, ‘Let’s leave things as they are. If Congress wants to regulate this ‘brave new world’ let them do it’?”

Microsoft’s lawyer, E. Joshua Rosenkranz, retorted: “If people want to break the law and put their emails outside the reach of the US government, they simply wouldn’t use Microsoft.”