US v Microsoft: data privacy case heads to Supreme Court

Long-running case between Department of Justice and Microsoft is considered pivotal for data privacy rights in the UK

The American Supreme Court will hear a case between Microsoft and the US government about data privacy but Microsoft would prefer if Congress would just write new laws.

The long-running case started back in 2013, when Microsoft refused to hand over emails held in an Irish data center to US authorities who were investigating drug trafficking.

A judge initially upheld the US warrant, but last year the Court of Appeals for the Second Circuit sided with Microsoft that US authorities can't demand access to emails of foreign users held in data centres outside the country using standard search warrants.

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The Department of Justice has since appealed that ruling, and the hearing before the Supreme Court is the latest attempt by the authorities to access data held overseas. 

"Under this opinion, hundreds if not thousands of investigations of crimes  ranging from terrorism, to child pornography, to fraud  are being or will be hampered by the government's inability to obtain electronic evidence," Deputy Solicitor General Jeffrey Wall argued in court papers, according to Bloomberg.

Microsoft says it intends to keep fighting the case. "We will continue to press our case in court that the Electronic Communications Privacy Act (ECPA)  a law enacted decades before there was such a thing as cloud computing was never intended to reach within other countries' borders," said Brad Smith, Microsoft president and chief legal officer, in a blog post.

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He added: "If US law enforcement can obtain the emails of foreigners stored outside the United States, what's to stop the government of another country from getting your emails even though they are located in the United States?"

Smith has previously argued for Congress to update that law, saying there was "positive momentum" among lawmakers to modernise the 30-year-old law.

It hasn't yet been announced when the case, US v Microsoft, will be heard.

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