Microsoft fends off appeal in foreign data case

A legal verdict from the US limiting the rights of its nation's law enforcement agencies to demand data stored on foreign servers will be allowed to stand for now.

The US Second Circuit Court of Appeals has, in a 4-4 split decision, declined to reconsider the earlier verdict in Microsoft's favour finding that Microsoft did not have to provide emails stored on an Irish server in response to a domestic warrant.

In the original case, Microsoft said it was bound to abide by Irish law, and that the US Department of Justice should have sought access to the emails using its treaty with Ireland. The emails pertained to a drug investigation.

Concurring arguments to the verdict included the fact that the Department of Justice has in previous cases taken the position that courts should be particularly respectful of sovereignty concerns “when authorizing data to be collected in the United States but drawn from within the boundaries of a foreign nation”.

But dissenting opinions held that the decision could weaken what is an essential investigative tool of requesting electronic information using a warrant.

The Department of Justice had argued that in the cloud era, when data can be transferred across borders without the user or even the provider's knowledge, the physical location of data is unimportant.

Both concurring and dissenting judges agreed that the 1986 legislation at the heart of the case needs to be updated for the modern era, and modified to better balance privacy with giving powers to law enforcement and national security agencies.

In a statement, Microsoft President and Chief Legal Officer Brad Smith agreed, noting that US Congress should “modernize the law both to keep people safe and ensure that governments everywhere respect each other's borders. This decision puts the focus where it belongs, on Congress passing a law for the future rather than litigation about an outdated statute from the past.”

Image courtesy of Chris Potter under CC

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