On July 14th, the Second Circuit Court of Appeals ruled in the Microsoft v. US case that the U.S. government cannot use a warrant issued under the Stored Communications Act to compel Microsoft to disclose the contents of emails stored on a server in Ireland – because the pertinent “seizure” of data would take place in Ireland, and the Stored Communications Act does not have extraterritorial effect. Instead, the U.S. government must rely on the lengthy Mutual Legal Assistance Treaty (MLAT) process to obtain the data from the Irish authorities.
Commentators disagree whether this decision is a win for privacy, has significant public safety implications, serves as an incentive for data localization mandates, or is a boon for the U.S. technology industry. Many argue that Congressional action is necessary. A legislative proposal by the Department of Justice would allow allies like the United Kingdom to circumvent the MLAT process when seeking data that is within their jurisdiction but located in the United States.
The American Society of International Law (ASIL) Interest Group on International Law and Technology and ASIL Academic Partner George Washington University School of Law will host a web-based panel discussion on this significant case on Thursday, September 8th from 12:00-1:30pm. Speakers will include Jennifer Daskal, assistant professor of law at ASIL Academic Partner American University Washington College of Law; Richard Downing, deputy assistant attorney general of the Computer Crime and Intellectual Property Section of the Department of Justice; and James Garland, partner at Covington & Burling who has represented Microsoft in the Second Circuit litigation.