A U.S. judge can compel American citizens to comply with a search warrant, but those powers stop at the water’s edge. At least, that is the case Ireland is making in an amicus brief it filed in New York on behalf of Microsoft.
Microsoft is fighting attempts by the U.S. government to execute search warrants on servers it maintains overseas. Redmond is arguing that the government does not have the authority to conduct searches on machines located in foreign countries, such as the servers it maintains in the Republic of Ireland.
U.S. Asserts Global Jurisdiction
The conflict between Microsoft and the U.S. government stems from a 2013 court order compelling the company to hand over e-mails from a Microsoft user stored on servers located in Ireland. However, Microsoft is forbidden from surrendering a user’s personal data to a foreign government without due process, according to Irish and European Union privacy laws,
Microsoft is hardly alone in its fight against the U.S. Dozens of other U.S. technology and media companies along with several trade groups filed their own amicus briefs in the Microsoft case last week, arguing that the government’s authority does not extend across the globe.
In its amicus brief, the Republic of Ireland makes three points. First, that U.S. courts are obliged to respect the sovereignty of foreign countries. Second, that the Irish government is not required to intervene in U.S. courts to protect its sovereignty. Finally, it argues that failure to intervene in U.S. court proceedings does not constitute consent or agreement with the request by the U.S. to search Irish servers.
For its part, the U.S. is arguing that it has global jurisdiction for any transaction involving a party in the U.S., in this case, Microsoft. Ireland, meanwhile, claims its law has jurisdiction over machines located within its borders.
Of course, the contretemps over which country has jurisdiction seems like a fight the U.S. hardly needs to be picking. Ireland and the U.S. have a treaty agreement, known as the Mutual Legal Assistance Treaty, covering cooperation between the law enforcement agencies in the two countries.
In fact, Ireland makes this point explicitly in its amicus, saying, “Both the parties and other amici, Ireland and the United States are parties to a treaty addressing the subject of this appeal. Ireland would be pleased to consider, as expeditiously as possible, a request under the treaty, should one be made.” In other words, the legal mechanisms exist for the U.S. to request such evidence from Ireland, but it has to cooperate with authorities within that country.
Microsoft, meanwhile, is eager to have the question of sovereign legal authority with respect to cloud data storage resolved. “The Irish government’s engagement underscores that an international dialogue on this issue is not only necessary but possible,” Microsoft said in a blog post. “We’ve long argued that it’s best for law enforcement to move forward in a way that respects people’s rights under their local laws. We’re grateful that government voices have now joined those of leading companies, advocacy organizations and academic experts.”