The US case in which Microsoft is fighting a request to hand over emails from a data centre in Dublin, could have serious implications for Ireland if the tech giant loses, said Microsoft's general counsel Brad Smith.
“We are concerned if we lose this case, governments will demand that data centres are constructed in their countries to store the data of their citizens. That would be bad for the IT sector in Ireland,” he said.
Microsoft was last month was held in contempt of court for refusing to let the US government access customer emails stored in the company’s Dublin data centre. Microsoft had been ordered by chief US district judge
to hand over a customer’s emails and account information, which Microsoft refused to do, arguing the request is not legal as the emails are held outside US borders.
The emails being sought by the US government relate to a drug-trafficking case, and were originally sought under warrant at the end of last year.
Mr Smith said Microsoft stores data in Dublin for Europe, the Middle East and Africa, adding that European data would only be stored in European data centres, to keep it beyond the reach of the US authorities. “We won’t back up that data in the US. That way the US government can’t get it. That data will be stored in Ireland and backed up in data centres in Amsterdam.”
Mr Smith said the tech giant is conscious that its entire cloud strategy outside the US could be jeopardised if it hands over the emails. He said people have concerns about how their data is protected, and those concerns have implications for cloud adoption, as people won’t use technology they don’t trust.
“Can people around the world trust the information technology that they use? The information people store in the cloud is entitled to the same level of privacy protection as writing it on a piece of paper.”
The US government previously threatened to fine Yahoo $250,000 (€198m) a day if it refused to hand over user data to NSA. However, Mr Smith said this is not something Microsoft is worried about in the near future. “They [the court] agreed not to impose fines while the case is pending. We will see what will happen down the road.”
He said Microsoft would be happy to hand over the emails to the Irish authorities if the US government went through the Mutual Legal Assistance Treaty, which governs the transfer of information in criminal cases. “When governments seek to obtain customer information in other countries they need to comply with local laws in those countries,” he said.
Minister of State for Data Protection Dara Murphy has said the Government is open to a request for the emails being made under mutual legal assistance provisions, but described as "objectionable" the process whereby a US court was making a direct order about data held in another jurisdiction.
Mr Smith, executive vice president of legal and corporate affairs at Microsoft, said the belief that consumers own their own emails is at the heart of tech company’s case. “We emphatically believe consumers own email. The US government believes businesses own emails as business records and they can subpoena them.”
Respect for privacy
He said Microsoft supports a draft law, the Law Enforcement Access to Data Stored Abroad Act, aimed at ensuring the US government respects an individual’s privacy, global borders and those laborious treaties. He said the case would go to the second court of appeal in the US, and will unfold over 10-12 months.