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Microsoft will appeal judge’s decision on data stored in Ireland

A judge sitting in New York rejected the argument that data stored in Dublin is protected by European privacy laws, rather than U.S. law.

Microsoft is planning to appeal a federal judge’s ruling on July 31 that would force the company to provide data stored in Ireland to U.S. authorities.

The appeal will likely come soon, and Brad Smith, Microsoft's general counsel and executive vice president, Legal and Corporate Affairs, said after the judge’s decision that the U.S. District Court “decision would not represent the final step in this process.”

“We will appeal promptly and continue to advocate that people’s e-mail deserves strong privacy protection in the U.S. and around the world,” Smith added.

The judge sitting in New York rejected the argument that the data stored in Dublin is protected by European privacy laws rather than U.S. law.

Instead, Judge Loretta Preska held that Microsoft is a U.S-based company and it controls data it stores in other countries.

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FURTHER READING:

Privacy rights getting some needed support from courts: Brad Smith

Government should do more to protect data: Brad Smith

Microsoft GC discusses the future of privacy, Part 1

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"It is a question of control, not a question of the location of that information," Preska said in part of her ruling, according to a report from ZDNet.

If the government remains successful in the litigation, such information can be given to U.S. intelligence or law enforcement authorities.

Other large U.S.-based tech companies, such as Apple, Facebook, Google, Twitter and Yahoo, could be impacted, as well.

However, European officials contend a subsidiary located in Europe whose parent company is in the United States is regulated by European law.

At issue in the Microsoft case are customer e-mails stored in data centers located outside of the United States. This particular case relates to the U.S. government presenting Microsoft a search warrant in December, which sought access to consumer e-mails as part of a narcotics investigation.

“This dispute should be important to you if you use email, because it could well turn on who owns your email—you or the company that stores it in the cloud,” Smith argued in a recent op-ed written for The Wall Street Journal.

“Microsoft believes you own emails stored in the cloud, and that they have the same privacy protection as paper letters sent by mail,” Smith explained. “This means, in our view, that the U.S. government can obtain emails only subject to the full legal protections of the Constitution's Fourth Amendment. It means, in this case, that the U.S. government must have a warrant. But under well-established case law, a search warrant cannot reach beyond U.S. shores.”

But the U.S. government has argued that e-mails are business records of a cloud provider.

“Because business records have a lower level of legal protection, the government claims that it can use its broader authority to reach emails stored anywhere in the world,” Smith explained the position. “Microsoft believes the higher legal protection for personal conversations should be preserved for new forms of digital communication, such as emails or text and instant messaging.”

InsideCounselhas reported Smith’s earlier comment that if the U.S. government wants private communications of Microsoft customers, it “should turn to the legal process” and if it desired more information it “should turn to Congress.”

Contributing Author

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Ed Silverstein

Ed Silverstein (emsilverstein@gmail.com) is a veteran freelance writer and and editor for magazines, websites and newspapers. He writes frequently for ALM Media's

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