Microsoft loses appeal to protect offshore email from US warrant

A US judge has upheld a US warrant demanding Microsoft hand over a user’s email, despite it being stored offshore.

Microsoft has lost its second attempt to deflect a US warrant issued last December that demanded it produce email stored on servers located in its data centre in Dublin, Ireland.

The courts so far agree that the Justice Department can order Microsoft to produce email related to a criminal investigation, regardless of its location.

Microsoft has contended the email should be obtained through a mutual legal assistance treaty with Ireland and has argued that bypassing this agreement would violate Ireland’s sovereignty and be in breach of international law.

However, chief US district judge Loretta Preska in a Manhattan federal court backed prior rulings that Microsoft must comply with the warrant, saying that it was “not an extraterritorial application of United States law”.

Rather, the most important issue was “control”, not the location of the information, according to Preska.

The ruling conflicts with the European Commission’s view that the type of warrant Microsoft is fighting may breach international law and block European citizens’ legal right to privacy.

Preska put the decision on hold until Microsoft formally files a notice of appeal — a move that Microsoft has confirmed it will pursue.

“The only issue that was certain this morning was that the District Court’s decision would not represent the final step in this process,” Brad Smith, the company's general counsel said in a statement.

“We will appeal promptly and continue to advocate that people’s email deserves strong privacy protection in the U.S. and around the world.”

It’s believed to be the first time any company has challenged a warrant for data held abroad, which in this case was issued under the US Electronic Communications Privacy Act. The act caters to online investigations however Microsoft argues it should not extend beyond US borders.

Apple, Cisco, Verizon and AT&T have supported Microsoft’s legal challenge, citing concerns for business interests abroad if the warrant is upheld.

Notably, Google, the subject of Microsoft’s long-running “Scroogled” campaign highlighting privacy issues with Gmail, has not supported Microsoft’s legal challenge.

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