In what’s turned out to be a great week for US privacy developments, hot on the heels of the Privacy Shield announcement, yesterday, 14 July, the 2nd US Circuit Court of Appeals gave its anxiously awaited judgment in the Microsoft search warrant saga.
The case centred on a warrant in a US narcotics case requiring Microsoft to hand over emails that were stored on a Microsoft server in Dublin. After Microsoft refused, a District Court in Manhattan held in 2014 that Microsoft was compelled to hand the emails over. Microsoft appealed. At stake of course was not just some emails, but fundamental questions concerning the extent to which one country can extend its long arm of the law into another jurisdiction and the individual’s rights to privacy and protection under their own domestic laws. No wonder then that this case quickly became a cause celebre not only for privacy campaigners but was also supported by scores of other international companies. Apple, Amazon, Cisco, Fox News and many others filed amicus briefs in support of Microsoft’s case. The decision was also critical since many feared that such a decision could result in a ‘free for all’ of extra-juridical orders, some of which could turn the tables on the US, requiring disclosure of data held on its soils.
Yesterday’s clear ruling allays those concerns. The 2nd US Circuit Court of Appeals unanimously held to reverse the order on Microsoft and at the same time to void a contempt of court claim. It held that Congress had not intended the legislation giving rise to the warrant to apply extraterritorially. Microsoft’s President and Chief Legal Officer, Brad Smith, understandably welcomed the decision, writing that “this decision provides a major victory for the protection of people’s privacy rights under their own laws rather than the reach of foreign governments“.
A collective sigh of relief across the media and tech industries could be heard last night.