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Ireland sides with Microsoft in email privacy case

The country files a friend-of-the-court brief asking the US to respect its sovereignty and not go over its head by seizing emails stored on Microsoft servers in Ireland.

Ireland files a brief backing Microsoft's opposition to handing over emails that are stored on servers in Dublin.Photo by Microsoft

Ireland waded into an email privacy case Tuesday by filing a friend-of-the-court brief supporting Microsoft's opposition to turning over emails in a criminal case that are stored on servers in Dublin.

The Irish government filed the motion in the US Court of Appeals for the Second Circuit in New York asking the US to respect its sovereignty. "Ireland does not accept any implication that it is required to intervene into foreign court proceedings to protect its sovereignty," the brief read. But the Irish government also said it would consider allowing access to data in its country.

"As minister for data protection, I have given detailed consideration, from an Irish perspective, to the issues raised in this complex case," Ireland's Dara Murphy said Tuesday in a statement. "There are important principles of public policy at play. Having engaged in detailed consultation with my colleagues in government, it was agreed that Ireland should submit an amicus curiae brief to the US court that focuses on the principles involved in this case and that points to the existing process for mutual legal assistance in criminal matters."

The brief notes that the US and Ireland signed a treaty in 2001 that allows them to transfer case evidence to assist in law enforcement activities. The brief has pleased Microsoft, which has called on Ireland to chime in on the issue before any decisions are made by US courts.

The US and Microsoft have for the last year been waging a legal war over whether the software company can and should hand over emails from users involved in the narcotics case.

Last December, a New York judge said that Microsoft would be required to provide the US government with user emails in connection with a criminal investigation. Microsoft discovered that the emails were residing on one of its servers in Dublin and subsequently refused the request, saying that the US doesn't have the right to obtain private emails without the "knowledge or consent of the subscriber or the relevant foreign government where the data is stored." Microsoft says that the stored communications provisions of the Electronic Communications Privacy Act (ECPA) do not apply outside of the United States.

Despite Microsoft's concerns, a court ruled in July that Microsoft must hand over the emails. Microsoft again refused, saying that the US doesn't have the right to access email communications from people who are not living in the country.

While Microsoft General Counsel Brad Smith stopped short of going that far with his statement on the matter on Tuesday, he did write in a blog post on the issue that "the Irish government's engagement underscores that an international dialogue on this issue is not only necessary but possible." Smith went on to say that Microsoft has long desired collaboration between governments and not for one to "exercise" any "authority" over another.

Microsoft declined to provide additional comment beyond what Smith wrote in his blog post.

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