Ireland: The Microsoft Warrant Case: Not Just An Irish Issue

Last Updated: 11 October 2014
Article by John O'Connor

John O'Connor outlines the latest position in the 'Microsoft Warrant case' where the Cloud provider was ordered by a US Federal Court to produce its customer's private e-mail content even though it was stored exclusively outside the USA.

The District Court for the Southern District of New York has decided that Microsoft Corporation must, pursuant to a warrant, produce to US authorities, content and non-content data relating to an e-mail account (including private emails) of a customer held on a Microsoft server in Ireland. The decision raises significant issues for cloud providers, technology companies, privacy advocates, data protection regulators and governments, not only in Ireland but across the world. The court case has been ongoing since December 2013. In August, the New York District Court removed the stay on the warrant ordering Microsoft to produce the e-mails to the FBI. In order for the case to continue to the New York Second Circuit Court of Appeals, on 5 September 2014, Microsoft declined to comply with the court's ruling, voluntarily entering into contempt, with any sanctions deferred pending the final outcome of the case.


The search warrant was issued pursuant to the US Stored Communications Act (SCA), government legislation from the Ronald Reagan-era. The SCA states that a US company's overseas records must be disclosed domestically when a valid subpoena, order or warrant compels their production. The judge deduced from the facts that it was the intention of US Congress when drafting the SCA that it would have an extra-territorial effect if required. Further evidence of this intention was given in that the controversial US PATRIOT Act, legislation passed to strengthen security controls in the immediate aftermath of 9/11, contains such provisions.

Microsoft has argued to the court that (i) a SCA warrant is confined to US territory and has no effect in a foreign jurisdiction; (ii) interpreting the SCA warrant to have extra-territorial reach is a violation of international law; (iii) compelling Microsoft to hand over the property does not circumvent the fact that it is an illegal search and seizure by law enforcement; (iv) the data belong to Microsoft's customer and do not constitute business records of Microsoft; and (v) the US Government should use an appropriate process designed for this kind of request, such as the Mutual Legal Assistance Treaty (MLAT) with Ireland (signed January 2001) to procure the data relating to this e-mail account. Microsoft's stance is supported by Apple, Cisco, Verizon, and AT&T, all of whom have filed amicus curiae briefs in support of Microsoft's position stating that a final decision in favour of the US Government would create a 'dramatic conflict with foreign data protection laws'.

Judge Preska, presiding, rejected Microsoft's argument (see In re Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corp., __ F. Supp. 2d. __, 2014 WL 1661004 (SDNY 25 April 2014)). In so holding, the judge deemed the SCA warrant to be a hybrid of a warrant and a subpoena and therefore, subject to the rules of a subpoena, the property must be handed over to the court.

Some US law

It is well established in US law that US authorities who demonstrate probable cause to a US court may be authorised to search for and seize evidence located within the US. A similar approach is adopted in Ireland and many countries across the world. A US search warrant as described cannot however be deemed valid in a foreign jurisdiction subject to non-US laws. The law regarding a US subpoena is also well established. The recipient of a subpoena must produce the materials required, as listed in the subpoena, if the materials are within the 'possession, custody or control' of the recipient. The USA is also of the view that a search in the context of digital data and information 'occurs when information from or about the data are exposed to possible human observation, such as when it appears on a screen, rather than when it is copied by the hard drive or processed by the computer'.

Relevant Irish law and views

The Irish Data Protection Acts 1988 and 2003 seek to regulate the collection, processing, use and disclosure of data relating to individuals that is processed or controlled in Ireland. The Acts prohibit the transfer of personal data from Ireland outside the European Economic Area unless the receiving country ensures an 'adequate level of protection' for the privacy and fundamental rights and freedoms of data subjects in relation to the processing of personal data, having regard to all the circumstances surrounding the transfer. The data in question were not transferred by Microsoft under Safe Harbor, the long established EU/US framework for the legitimate transfer of personal data from the EEA to the US, and has at all times been in situ in the Irish data centre. The Acts contain certain exemptions relating to the transfer to a third party such as on the grounds of a 'legal obligation' or that it is 'necessary for the administration of justice'. It is the opinion of Michael McDowell, a former Irish Attorney General, and now a pre-eminent senior counsel (barrister) before the Irish Supreme Court that such exemptions are 'only lawful where such disclosure is required or mandated by reference to Irish law and is subject to the jurisdiction and control of the Irish courts'. The ability therefore of the US Government to obtain a warrant, subject to US domestic law, that has effect in Ireland may, it is argued, be a breach of Irish sovereignty.

Mr. McDowell also stated in his view in a declaration before the New York court, that MLAT was the appropriate procedural forum for the transfer to take place. Further to this, in 2003, the European Union and the USA entered into a separate agreement on mutual assistance, which was subsequently applied to the Ireland-US MLAT. The MLAT was established to allow US authorities to seek the assistance of Ireland to obtain evidence located in Ireland which is required for the purposes of US law enforcement, particularly in the context of criminal investigations.

Dara Murphy TD, the Irish Minister of State at the Department of the Taoiseach and Foreign Affairs with Special Responsibility for European Affairs and Data Protection, has expressed the view that the Irish Government has 'serious concerns' about the implications for Ireland and the EU arising from the US court decision. Mr. Murphy suggested that compliance with the warrant may result in Microsoft, and any other US companies with operations in the EU which are served with such warrants in the future, being in breach of the Acts and the EU Data Protection Directive, stating that '[t]his would create significant legal uncertainty for Irish and EU consumers and companies regarding the protection of their data which, in this digital age, is everyone's most valuable asset'.

Wider context and reaction

In the post-Snowden/Wikileaks age, access to and storage of data in bulk by the US National Security Agency under its PRISM Programme continues to haunt the principles of data protection across Europe. The German Government has stated that it will not store data with US cloud providers unless the decision is overturned. The Managing Director of Microsoft Germany, Dr. Christian Illek, has stated that the company is considering the possibility of working with partners to develop a cloud data centre based in Germany, with the aim of alleviating national concerns over cyber security. According to Dr. Illek, Microsoft is testing the idea of a 'German cloud system', where data could be hosted by a partner company (rather than a Microsoft Group company) but not be subject to US law. The Chairman of Hewlett-Packard Germany, Heiko Meyer, had issued a similar message, in which he called for a common cloud space for Europe, similar to the concept of the EU's economic area.

An unavoidable consequence, if the extra-territorial scope of the warrant is upheld, is that US multi-national cloud providers may need to promptly review their business models and engage with data protection regulators, at least to the extent that they host data, including personal data, in the EEA on behalf of third parties and where such data have not been transferred to the US under Safe Harbor or other legitimate data transfer means.

The ramifications of this decision for technology companies threatens the growth of the global cloud model and would appear to be in conflict with Irish and European data protection law. The right of protection against illegal search and seizure of physical property needs to clearly apply also to the digital world. The essence of the cloud model is that the customer's data in the cloud remain the property of the customer and the cloud provider merely acts as a host. The customer's data are not the host's data. It is on this basis of trust and privacy that the cloud model has flourished.

The protection of cloud data has never been so heralded and, at the same time, has never been in such danger. Brad Smith, General Counsel and Executive Vice President, Legal & Corporate Affairs for Microsoft, wrote in the Wall Street Journal, 'Timeless values should endure, and digital common sense should prevail'; a view shared by many in the technology and legal community. It's a view that I share.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions