Microsoft calls for dismissal of US privacy fight over Dublin emails

Microsoft has backed the US justice department's request that the US supreme court dismiss a long-running case in which law enforcement authorities in the United States were seeking access to emails on a server in Ireland in a drugs investigation.

The case hinged on whether prosecutors could use 32-year-old legislation to force technology companies to hand over data stored overseas.

Congress last month passed a new law that effectively resolved the dispute.

The court heard arguments in the high-profile case on February 27th but President Donald Trump signed legislation on March 22nd that makes clear that US judges may issue warrants for such data while giving companies a way to object if the request conflicts with foreign law.

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The US authorities are now seeking to use a warrant, obtained under the new legislation, to force Microsoft to hand over the emails stored in Dublin.

The Clarifying Lawful Overseas Use of Data Act or Cloud Act amends the Stored Communications Act (SCA) of 1986 to allow federal law enforcement to compel US-based service provider companies via warrant or subpoena to provide requested data stored on servers regardless of whether they are located within the US or in other countries.

Court filing

In a filing with the supreme court, Microsoft said it would not oppose the justice department’s bid to dismiss the case, filed last Friday, because the matter was now moot.

“Microsoft agrees with the government that there is no longer a live case or controversy between the parties with respect to the question presented,” the company’s lawyers said in the filing.

Microsoft and the justice department had been locked in a dispute over how US prosecutors seek access to data held on overseas computer servers owned by US companies. In its court filing, the justice department said it had obtained a new warrant that would be governed by the new law.

In a blog post on Tuesday, Microsoft president Brad Smith said that, although the Cloud Act resulted from successive drafts over several years, its passage "surprised many".

“And the speed with which it happened was a bit of a shock, especially in an era when potential compromises in Washington, DC more commonly result in failure and disappointment than new policy or law,” he wrote.

Mr Smith added that the passage of the Cloud Act was “an important milestone in the journey to modernise the law, enable enforcement officials to do their jobs and protect people’s privacy rights across borders”.

“It has strong and broad support. But it’s not the end of the road. There remains important and urgent work ahead of us,” he wrote.

The Act both created the foundation for a new generation of international agreements and preserved rights of cloud service providers such as Microsoft to protect privacy rights until such agreements are in place.

‘Singular effort’

Mr Smith noted that Microsoft had brought four different privacy lawsuits against the US government since 2013 “to seek to modernise the law and ensure that the privacy rights of individuals and customers are protected”. They had all been part of a “singular effort”.

“Of the four lawsuits, we have always recognised that the issues that led to the Supreme Court case would be the most complicated, as indeed they have been,” Mr Smith wrote.

“This is for two reasons. First, given their nature, these issues required Congress to pass a new law rather than a solution based on action that could be taken by the executive branch or the judiciary alone.

“And second, given their inherently international nature, it was always clear that new domestic legislation would need to be followed by new international treaties. In short, progress would require a broad and sustained effort to modernise both domestic and international laws.”

While the Cloud Act created new rights under new international agreements, it also preserved the common law right of cloud service providers to go to court to challenge search warrants when there is a conflict of laws – even without these new treaties in place.

“This is a vital right for companies such as Microsoft, and it’s a right that we’ll continue to rely on,” Mr Smith wrote. – Additional reporting: Reuters