Privacy & Information Security Law Blog

In December 2014, we reported that various technology companies, academics and trade associations filed amicus briefs in support of Microsoft’s attempts to resist a U.S. government search warrant seeking to compel it to disclose the contents of customer emails that are stored on servers in Ireland. On December 23, 2014, the Irish government also filed an amicus brief in the 2nd Circuit Court of Appeals.

The amicus brief filed by the Irish government notes the servers are located in Ireland and stresses the importance of Irish sovereignty. The Irish government argues that the appropriate mechanism for obtaining data held on servers in Ireland is through international cooperation and the use of existing international treaties that were entered into for the specific purpose of enabling a government to request information that is subject to the laws of a foreign country.

The Irish government also noted a previous case where the Supreme Court of Ireland held that an Irish court can compel the disclosure of information stored by an Irish entity outside of Ireland if the information is for a criminal or similar investigation and there are no alternative means of obtaining the information. It is unclear, however, to what extent the U.S. court will consider a decision issued by a foreign court, such as the Supreme Court of Ireland.

Echoing its previous appeal to the U.S. government to “find a better way forward,” Microsoft welcomed the Irish government’s brief and reiterated its view that an international dialogue is the best way to resolve the issue of cross-border disclosure requests.