A US appeals court has upheld a ruling that Microsoft can’t be forced to give the Department of Justice access to customer emails stored outside the country.
In a 4-4 split, the Second Circuit Court of Appeals declined to reconsider its July decision denying the DOJ access to the emails of a drug trafficking suspect stored on a Microsoft server in Ireland.
The court had ruled that the Stored Communications Act (SCA) didn’t cover searches outside the US, which should instead be handled through an existing mutual legal assistance treaty (MLAT).
However, the court noted in its decision that the rather ancient SCA had been overtaken by technology: “It is overdue for a congressional revision that would continue to protect privacy but would more effectively balance concerns of international comity with law enforcement needs and service provider obligations in the global context in which this case arose,” wrote Judge Susan Carney.
The Microsoft headquarters in Redmond, Washington. (Stephen Brashear/Getty Images)
Microsoft successfully argued that overturning the ruling would undermine Ireland’s sovereignty – as well as severely damaging customer trust.
“It is for just this sort of reason that the government has entered into MLATs with other sovereigns: to address mutual needs for law enforcement while respecting sovereign borders,” wrote Carney.
“And it is for just this sort of reason that the government has in other circumstances taken a position, somewhat in tension with the one it takes here, that courts should be particularly solicitous of sovereignty concerns when authorizing data to be collected in the United States but drawn from within the boundaries of a foreign nation.”