A few years ago, the Department of Justice (DOJ) has tried to force Microsoft to turn over emails of a purported drug dealer whose emails are stored on a Microsoft server in Ireland. Essentially, the U.S. government issued a warrant for the emails of an Irish citizen, stored on facilities in Ireland and operated by Microsoft’s Irish subsidy. Now the case is before the supreme court. Can the U.S. government require a U.S. company to retrieve overseas communications data from its customers?
As we have observed earlier, “It would make a lot more sense for the DOJ to work with their overseas counterparts (EU Parliament and Court of the EU) than to expose its multi-national U.S. corporations to potential retaliation and economic boycotts by foreign governments.” Such requests could be routinely made through the Mutual Assistance Legal Treaty, but the DOJ has decided to skip cooperation with our foreign allies and do an end-run by going to a U.S. multinational firm, rather than deal with foreign governments.
Serious economic damage is at stake in any decision that gives the DOJ a free hand in seeking evidence from Microsoft of Ireland’s servers.
It is surprising how much lawyer time and political bluster has been devoted to chasing the emails of a purported druggie. Furthermore, an inflammatory outcome could result in severe economic consequences to millions of innocent workers and consumers. EU activists have loaded their blunderbusses and are hyper-vigilantly listening for any slight toward EU privacy. If Microsoft is forced to turn over these emails, it will break European privacy laws; but not doing so will break a U.S. court order. It’s a no win situation.
The case could have a major economic impact on U.S. tech firms operating in Europe, causing Europe to shun U.S. technology firms, U.S. servers, U.S. cloud computing and U.S. software services. It could also trigger European governments to grab data from our shores. In short, the U.S. Supreme court decision could have lasting consequences on worldwide privacy and technology.
As a result, ACI has joined a group of think tanks – the CATO Institute, the Competitive Enterprise Institute, The Reason Foundation, TechFreedom – in filing an Amicus Brief with the Supreme Court of the United States on our objections to the U.S. government requiring a U.S. company to retrieve overseas communications data from its customers.
You can read the Amicus Brief here.