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Jan 24 2018   9:05PM GMT

Microsoft-Ireland Data Case Brings Its Friends

Sharon Fisher Sharon Fisher Profile: Sharon Fisher


The wheels of justice continue to grind in the Microsoft Ireland data servers case, with the simultaneous submission of 23 amicus briefs signed by almost 300 people worldwide to the Supreme Court, which is expected to hear the case next month.

As you may recall, the case, which started in 2014,  involved whether Microsoft must release data stored on one of its servers to a U.S. government agency, even though the data in question is outside the U.S. In January 2017, the Second Circuit Court of Appeals denied a rehearing of the case, which left the Supreme Court as the only option. At the very last minute – and after two extensions – the Department of Justice decided in June to go for it, and in October the Supreme Court agreed to hear the case. (Here’s a good description of it.)

The justices will hear oral arguments in late February, but in the meantime, a whole lot of people from a whole lot of countries, a number of Microsoft’s competitors, a slew of advocacy organizations, and a heap of computer science professors have lawyered up and sent in amicus briefs. Fortunately a lot of them worked together so the Supremes won’t have to read 300 separate briefs.

As Microsoft had suggested last June, several of the briefs from European Union (EU) countries referenced the General Data Protection Regulation (GPDR), a new law governing this issue that is scheduled to take effect in Europe in May. In fact, one of them was submitted on behalf of the guy who was responsible for the GPDR (who is, actually, on Twitter and is discussing the case there).

“In one of many amicus briefs filed Thursday on behalf of Microsoft, attorneys at White & Case wrote for European Parliament members, including Jan Philipp Albrecht, and former EU Justice Commissioner Viviane Reding,” writes Ben Hancock in The Recorder. “Albrecht helped shepherd the GDPR in the European Parliament to its ultimate adoption in 2016, and has been outspoken on digital privacy issues. He is the vice chairman of the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs, and also sits on the legislature’s Special Committee on Terrorism.” A total of 10 EU members signed that brief.

Ultimately, the solution is not the Supreme Court or any other court, but rewriting the Electronic Communications Privacy Act (ECPA) to better reflect the realities of this century, say advocates. “The blame should be placed not either party to this case, but rather on the outdated ECPA in clear need of reform,” writes Casey Given in the Washington Examiner. “Congress must act to clarify the rules of the road with regard to consumer privacy and government powers in the age of the internet.”

In particular, Given calls for a rewrite of the ECPA called the International Communications Privacy Act, which would let law enforcement request a warrant for content on remote servers and give the foreign government at play the chance to object should the warrant violate their privacy laws, he writes.

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