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Microsoft makes fresh legal bid to protect emails stored in Irish datacentre from US government

Software giant's ongoing battle to protect emails stored in overseas datacentre from US government enters new phase

Microsoft has warned a US federal appeals court that forcing it to hand over email data stored in its Dublin datacentre could pave the way for overseas governments to demand American citizens to surrender their data too. 

The supplier has so far challenged all court-ordered attempts to make it part with the information, on the grounds that the data is stored overseas where the US government’s search powers do not apply.

Microsoft was initially ordered by the US Department of Justice (DoJ) in December 2013 to comply with a warrant that would give law enforcers the right to seize and search the emails of an unnamed suspected drug trafficker.

The firm failed to have the move overturned by the US Court for the Southern District of New York in August 2014, but is making its case in the Second Circuit Court of Appeals this week.

The DoJ said in court on 9 September that the government has the right to ask any US-based email provider to hand over data on their users regardless of where in the world their data is held.

Microsoft counsel Joshua Rosenkranz rejected this claim, and is reported by the Guardian to have said: “This is an execution of law enforcement seizure on their land. We would go crazy if China did this to us.”

The crux of the issue is that the DoJ thinks the emails should be classed as “business records”, while Microsoft’s stance is that they constitute personal documents. If the court rules in the DoJ’s favour, the department would only need to present a search warrant to get hold of them.

“The notion of the government’s that private emails are Microsoft’s business records is very scary,” said Rosenkranz. 

The outcome of the case has big implications for the cloud industry, as the issue of who has the right to access data stored off-premise remains a top concern for users.

For this reason, Microsoft’s stance on the issue has won the support of its rivals, including Amazon, Apple and Salesforce.

Read more about data sovereignty

Ahead of the company’s return to court, Brad Smith, executive vice-president and general counsel for Microsoft, told the Council on Foreign Relations that it is determined to challenge the ruling because the laws on who can access users’ data in the cloud are so muddled.

“At the broadest level, this issue is about the future of technology. We need to ensure people can trust the technology on their desks and in their pockets. This trust will only come if the laws are clear,” said Smith.

“If the US government is permitted to serve warrants on tech companies in the United States and obtain people’s emails in any country, it will open the floodgate for other countries to serve warrants on tech companies for the private communications of American citizens that are stored in the United States in a datacentre owned by a foreign company.”

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