Menu
Microsoft cites new EU personal data rules in support of email dispute

Microsoft cites new EU personal data rules in support of email dispute

Microsoft has refused to provide to the U.S. government emails stored in Ireland

Microsoft has cited new European data protection rules in support of its claim that the U.S. government should use inter-governmental agreements rather than a warrant to force the technology company to provide emails stored in Ireland that are required for an investigation.

The General Data Protection Regulation was adopted last week by the European Parliament with an aim to provide an unified data protection regime across member states. It was earlier adopted by the Council of the EU, and is to come into effect in a little over two years after its publication in the EU Official Journal. The legislation will replace the EU Data Protection Directive, which dates back to 1995.

In a filing in the U.S. Court of Appeals for the Second Circuit, Microsoft's lawyer E. Joshua Rosenkranz referred to Article 48 of the regulation, which states that any “judgment of a court or tribunal and any decision of an administrative authority of a third country requiring a controller or processor to transfer or disclose personal data may only be recognised or enforceable in any manner if based on an international agreement, such as a mutual legal assistance treaty.....”

This rule sits well with Microsoft’s own position in the dispute. It has favored an inter-governmental resolution to the U.S. demand for access to the emails in Ireland, through the use of "mutual legal assistance treaties" the U.S. has with other countries including Ireland. The government has argued that the procedure is time-consuming.

Although the government has a warrant for access to emails held by Microsoft of a person involved in an investigation, the company has argued that nowhere did the U.S. Congress say that the Electronics Communications Privacy Act "should reach private emails stored on provider's computers in foreign countries." Microsoft provided non-content information held on its U.S. servers in response to the search warrant, but tried to quash the warrant when it concluded that the account and the content of the mails were hosted in Dublin.

U.S. Magistrate Judge James C. Francis IV of the U.S. District Court for the Southern District of New York had earlier ruled that the warrant under the Stored Communications Act, a part of the ECPA, was "a hybrid: part search warrant and part subpoena." It is executed like a subpoena in that it is served on the Internet service provider, which is required to provide the information from its servers wherever located, but does not involve government officials entering the premises, Judge Francis ruled. Microsoft holds that Congress should be asked for a decision on whether warrants under the ECPA can be executed abroad.

Under the new EU regulation, fines can be levied for infringement of certain provisions such as Article 48 of up to 4 percent of the total worldwide annual turnover of an undertaking in the preceding financial year.

“Article 48’s enactment confirms that, absent a clear statement from Congress, the Stored Communications Act should not be read to extend to data stored abroad,” Rosenkranz wrote in a letter to the clerk of the court. “The presumption against extraterritoriality serves to guard against precisely the sort of international tension and intrusion on foreign sovereignty that the Government’s reading of the Act would engender.”

The proceedings in this high-profile lawsuit playing out in the appeals court have been rather slow in the last few months, with a decision by the court eagerly awaited because of its wide implications.


Follow Us

Join the newsletter!

Or

Sign up to gain exclusive access to email subscriptions, event invitations, competitions, giveaways, and much more.

Membership is free, and your security and privacy remain protected. View our privacy policy before signing up.

Error: Please check your email address.

Featured

Slideshows

Meet the leading female front runners of the Kiwi channel

Meet the leading female front runners of the Kiwi channel

Reseller News honoured the leading female front runners of the New Zealand channel at the 2018 Women in ICT Awards (WIICTA) in Auckland. The awards honoured standout individuals across seven categories, spanning Entrepreneur; Innovation; Rising Star; Shining Star; Community; Technical and Achievement.

Meet the leading female front runners of the Kiwi channel
Meet the top performing customer-centric Microsoft channel partners

Meet the top performing customer-centric Microsoft channel partners

Microsoft honoured leading partners across the channel following a year of customer innovation and market growth in New Zealand. The 2018 Microsoft Partner Awards recognised excellence within the context of the end-user, spanning a host of emerging and established providers.

Meet the top performing customer-centric Microsoft channel partners
Reseller News launches new-look Awards at 2018 Judges’ Lunch

Reseller News launches new-look Awards at 2018 Judges’ Lunch

Introducing the Reseller News Innovation Awards, launched to the channel at the 2018 Judges’ Lunch in Auckland. With more than 70 judges now part of the voting panel, the new-look awards will reflect the changing dynamics of the channel, recognising excellence across customer value and innovation - spanning start-ups, partners, distributors and vendors.

Reseller News launches new-look Awards at 2018 Judges’ Lunch
Show Comments