Hosting Data Outside the US? It’s Not Safe from US Search Warrants

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Microsoft must hand over customer email data as part of a US search warrant, even though the data in question is stored in Dublin, Ireland, according to several reports on Thursday.

Chief US District Judge Loretta Preska in Manhattan federal court ruled that the location of the email data was irrelevant because Microsoft controlled it from the US.

The case is a blow to US tech companies who have expanded to new geographies to appeal to international customers, providing customers concerned about privacy and compliance some solace in knowing that data hosted outside of the US should not be subject to US law. In April, a judge in the Microsoft case said that US providers should hand over customer data regardless of where in the world it is stored.

According to the Wall Street Journal, the search warrant was issued in December as part of a criminal investigation by the Department of Justice (DOJ). Details of the investigation remain secret.

During the proceedings, Microsoft’s lawyers argued that the DOJ had to get access to the emails through a legal treaty with Ireland. They further argued that by forcing Microsoft to retrieve them without the country’s consent it was in violation of Irish sovereignty and international law, the WSJ reports.

In a by-lined article by Microsoft General Corporate Counsel Brad Smith in the WSJ on Tuesday, Smith said that Microsoft believes customers should own their emails stored in the cloud and that “they should have the same privacy protection as letters sent by mail.”

“This means, in our view, that the US government can obtain emails only subject to the full legal protections of the Constitution’s Fourth Amendment. It means, in this case, that the US government must have a warrant. But under well-established case law, a search warrant cannot reach beyond US shores,” Smith said.

Smith continued: “The government seeks to sidestep these rules, asserting that emails you store in the cloud cease to belong exclusively to you. In court filings, it argues that your emails become the 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.”

Microsoft will be able to appeal the judge’s decision to the 2nd US Circuit Court of Appeals, and the company will “appeal promptly and continue to advocate that people’s email deserves strong privacy protection in the US and around the world,” Smith said in a statement, according to a report by CNet.


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