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A division of the Department of Justice has warned that the increasing number of US internet providers establishing data storage operations in Ireland may result in a "significant strain" on its resources as other states seek data as part of criminal investigations and proceedings.
The warning was contained in briefing notes prepared by officials in the department on the appointment of Frances Fitzgerald as Minister for Justice in May. It came from the Mutual Assistance and Extradition division of the department, which deals with European arrest warrants and mutual legal assistance requests.
The division warned that the “ongoing migration of data to Ireland for storage by US internet service providers may, in time, place significant strain on the mutual legal assistance requests process as other states seek this data for evidential purposes in the course of criminal investigations and criminal proceedings”.
It said such requests needed to be executed within a strict timeframe, posing a challenge for the division.
Briefing notes
The briefing notes for Ms Fitzgerald were prepared in May as
Microsoft
resisted a US government warrant seeking access to a customer’s emails stored in a Dublin data centre as part of a drug-trafficking investigation.
Microsoft, which operates the Hotmail, MSN and Outlook email services, argued that because the emails were stored in Dublin, they were beyond the reach of a US search warrant and if prosecutors wanted to access them, they should do so under the mutual legal assistance provisions.
At a US court hearing in June, Microsoft submitted a four-page legal opinion by former minister for justice Michael McDowell. In it he said prosecutors had to seek the permission of an Irish District Court judge under the Criminal Justice (Mutual Assistance) Act to carry out a search warrant in Ireland. However, earlier this month, a US judge lifted a suspension on an order directing Microsoft to turn over the customer’s emails, a ruling which the software company said it would appeal.
Open to request
Following the ruling, Minister of State for Data Protection
Dara Murphy
said the Government was open to a request for the emails being made under mutual legal assistance provisions which governed the transfer of information in criminal cases, but described as “objectionable” the process whereby a US court was making a direct order about data held in another jurisdiction.
More than 4,000 mutual legal assistance requests were made from outside jurisdictions between 2008 and 2013, figures from the Department of Justice show. However it is not clear how many of these relate to email interception.