European Commission
European Commission

The European Commission has said it will file an amicus brief with the US Supreme Court in the US versus Microsoft case on behalf of the European Union (EU).

“Given that the transfer of personal data by Microsoft from the EU to the US would fall under the EU data protection rules, the Commission considered it to be in the interest of the EU to make sure that EU data protection rules on international transfers are correctly understood and taken into account by the US Supreme Court,” the commission said in a statement, noting that “the amicus brief will not be in support of either one of the parties.” 

The US Supreme Court in October decided to heed a Justice Department request and hear arguments about whether the US federal government can use US warrants to reach emails stored in servers overseas nearly a year after the US Second Circuit Court of Appeals struck down a similar request.

During an investigation of a drug case, the US government in December 2013 had pressed Microsoft to turn over emails stored in the Irish server. Microsoft refused, claiming the US government had no power to ask for data stored in another country and well outside of its jurisdiction. In April 2014, a US federal judge ordered Microsoft to cough up those records. Microsoft again refused and was found in contempt of court. 

A three-judge panel from the US Second Circuit in July 2016 ruled that warrants from the US government issued under the Stored Communications Act (SCA) couldn't be used to force Microsoft to hand over emails stored in an Irish server. The US government then petitioned the court for a rehearing before the full panel of judges, but a subsequent January 2017 split vote, 4-4, slapped down the US government's request for a rehearing, meaning that the earlier ruling in Microsoft's favour would stand.

But the US high court's decision to review the case means the US justices “will now have to decide whether a warrant issued by a US court can compel a communications provider to produce its users' content no matter where it's stored in the world,” Greg Nojeim, director of the Center for Democracy & Technology's Freedom, Security & Technology Project, said in a release at the time.. “This is something that Congress should be addressing, rather than the Court.” 

In a brief filed with the US Supreme Court this week, the US Justice Department argued that Microsoft's compliance could be done “by undertaking acts entirely within the United States” and rebuffed the notion that an impetus behind Microsoft's resistance is that it “would be subject to liability “ under Irish or EU laws for disclosing stateside communications stored in the Irish server, noting that Microsoft had never made that claim when refusing to heed the order.

“If an actual conflict of laws were to arise, our judicial system is equipped to handle that scenario,” the US Justice Department brief said. “The government could exercise discretion to pursue alternate channels, where available.”