Microsoft: The future of cloud computing rests on some emails stored in Ireland


Brad  Smith Microsoft General Counsel


Microsoft's top lawyer, Brad Smith

In case that first began in December 2013, Microsoft is still refusing the government's demands to hand over emails of one of its users.


The government wants the emails as part of a drug trafficking investigation.

The problem is the emails are stored on a server in Ireland and Microsoft says that the US government doesn't have the jurisdiction to demand them, at least not from Microsoft.

Last summer, Microsoft lost its appeal on the matter.

On late Wednesday evening, Microsoft filed a legal brief reply on the matter, once again arguing that it should not be compelled to turn over emails stored in a foreign country, Microsoft's head lawyer, Brad Smith explained in a new blog post.


The gist of Microsoft's argument is:

A warrant served on an internet service provider should only be able to cover things in the cloud world that would be covered in the physical world, namely materials inside US borders, and a subpoena should be issued to the target of the investigation, not the ISP, Microsoft argues. If the government wants emails located outside the country, it should comply with mutual legal assistance treaties (MLAT) with those other countries. In this case, Irish law requires authorization from an Irish district court judge to obtain e-mail content from a provider, the Washington Post reports.

The case has caused a flurry of support from other members of the cloud computing industry who are concerned that it puts "U.S. cloud providers in the position of having to break the privacy laws of foreign countries in which they do business in order to comply with U.S. law," Senator Orrin Hatch, R-Utah, explained in a press release.

Hatch, with Microsoft's support, is sponsoring a bill called the LEADS Act that would create a law that backs Microsoft's position. The bill would clarify that US courts can't demand documents stored overseas if doing so would violate the laws of the country where it is stored, or if the data is not associated with a US citizen or someone with permanent residence here.

Until the time that bill is passed, or the government changes its position and goes through the MLAT proceedings for the Irish emails, Microsoft is in between a legal rock and a hard place. It can't ignore the US order, but if it complies with it, it could be violating Irish law.


And, if this doesn't get resolved, it could really hurt US cloud companies' ability to win international business.

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