US Court: the government cannot use a search warrant to force Microsoft to turn over users’ data stored in another jurisdiction

15 Jul 2016

An appeals court in the USA has ruled that the government cannot use a search warrant to force Microsoft to turn over the email communications of a criminal suspect in a drug case, as the communications were stored at Microsoft’s data center in Dublin, Ireland. The ruling, which overturned a previous order granted in 2014, said that a search warrant granted under the Stored Communications Act cannot be applied internationally. Microsoft, as well as human rights advocates, see the ruling as a positive precedent that limits US government’s ability to demand access to data stored in data centers located outside the US borders, even when the companies storing the data have their headquarters in the US. However, US authorities would still be able to demand access to data stored in other jurisdictions on the basis of Mutual Legal Assistance Treaties concluded with other countries.

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Cloud computing could be described as the shift from storing data on hard disks on our computers to servers in the clouds (i.e., huge server farms). Cloud computing offers ubiquitous access to all our data and services from any device anywhere around the world (where there is Internet connection).

Jurisdiction is the authority of the court and state organs to decide on legal cases. The relationship between jurisdiction and the Internet has been ambiguous, since jurisdiction rests predominantly on the geographical division of the globe into national territories. Each state has the sovereign right to exercise jurisdiction over its territory.

Privacy and data protection are two interrelated Internet governance issues. Data protection is a legal mechanism that ensures privacy. Privacy is usually defined as the right of any citizen to control their own personal information and to decide about it (to disclose information or not). Privacy is a fundamental human right. It is recognised in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and in many other international and regional human rights conventions. The July 2015 appointment of the first UN Special Rapporteur on the Right to Privacy in the Digital Age reflects the rising importance of privacy in global digital policy, and the recognition of the need to address privacy rights issues the the global, as well as national levels.


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