October 16, 2021

Volume XI, Number 289

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Microsoft Ordered to Hand Over Data to the U.S. Government

In April, Microsoft tried to quash a search warrant from law enforcement agents in the United States (U.S.) that asked the technology company to produce the contents of one of its customer’s emails stored on a server located in Dublin, Ireland. The magistrate court denied Microsoft’s challenge, and Microsoft appealed. On July 31st, the software giant presented its case in the Southern District of New York where it was dealt another loss.

U.S. District Judge Loretta Preska, after two hours of oral argument, affirmed the magistrate court’s decision and ordered Microsoft to hand over the user data stored in Ireland in accordance with the original warrant. Microsoft argued that the warrant exceeded U.S. jurisdictional reach. However, the court explained that the decision turned on section 442(1)(a) of Restatement (Third) of Foreign Relations. The provision says that a court can permit a U.S. agency “to order a person subject to its jurisdiction to produce documents, objects or other information relevant to an action or investigation, even if the information or the person in possession of the information is outside the United States.” Because Microsoft is located in the U.S. , the information it controlled abroad could be subject to domestic jurisdiction.

Microsoft had the support of large U.S. technology companies, including Apple, AT&T and Verizon. The larger issue for these companies lies in the U.S. government’s power to seize data and content held in the cloud and stored in locations around the world. When a conflict arises between the data sharing laws of the country where the servers are located and U.S. law, it can put these companies in the difficult position to choose to follow one country’s laws over the other.

Microsoft further argued that the ramifications for international policy are substantial. The company argued that compelling production of foreign stored information was an intrusion upon Irish sovereignty. It said that the decision could be interpreted by foreign countries as a green light to make similar invasions into data stored in the U.S. However, Judge Preska dismissed these concerns as diplomatic issues that were incidental and not of the court’s immediate concern.

The order has been stayed pending appeal.

© 2021 Proskauer Rose LLP. National Law Review, Volume IV, Number 227
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About this Author

As innovations in technology make it easier to track, collect and process personal information about individuals, companies of all kinds are challenged to manage the way that they use data to both comply with U.S. and non-U.S. laws and to protect such data from unauthorized access. In addition to maintaining compliance in a continuously evolving legal landscape, companies must also contend with industry standards promulgated by a wide array of diverse and sometimes overlapping industry groups. Yet, on a daily basis we hear reports of companies having suffered data...

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