Ireland: Long Arm Of US Law – US Microsoft Ruling And The Implications For Irish Data Centres

Last Updated: 20 May 2014
Article by Rob Corbet

On 25th April 2014, a New York court ordered Microsoft to comply with a search warrant to disclose a large amount of content, contact, payment and other data relating to an email account hosted in Ireland. The decision sheds light on the views of certain members of the US judiciary towards sovereign jurisdiction and, in particular, the extent to which a US court should be able to compel the production of data stored in servers overseas — in this case, in Dublin.


The facts of the case in question ('In Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corporation', 13 Mag. 2814, heard by Judge James Francis IV) were quite straightforward.

On 4th December 2013, Judge Francis issued a search warrant in favour of the US government authorising the search and seizure of information associated with a specified web-based email account that was 'stored at premises owned, maintained, controlled, or operated by Microsoft Corporation'. Microsoft sought to quash the warrant on the basis that it directed the production of information stored in Dublin, and that courts in the United States are not authorised to issue warrants for extraterritorial search and seizure.

US government position

The US government sought to rely on prior case law to argue that an entity lawfully obligated to produce information must do so regardless of the location of that information. The government produced academic literature demonstrating that this approach was consistent with the view that, in the context of digital information, 'a search 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.'

Microsoft's position

Microsoft's position was that Federal Courts lack the authority to issue warrants for the search and seizure of property outside the territorial limits of the United States. This presumption against territorial application is well enshrined in US law and provides that 'when a statute gives no clear indication of an extraterritorial application, it has none', to reflect the 'presumption that United States law governs domestically but does not rule the world' (Microsoft Corp. v. AT & T Corp., 550 U.S. 437, 454 (2007)). The principle is also a fundamental tenet of international law.


Despite these principles, Judge Francis appears to have determined that the presumption that United States law does not rule the world is a rebuttable one. In order to rebut it, the Judge explored the structure of the US Stored Communications Act ('SCA'), its legislative history and, most tellingly of all, 'the practical consequences that would flow from adopting it.'

On Congressional intention, the judge extrapolated from various provisions on the US PATRIOT Act that it was the intention of Congress to facilitate access to data across State boundaries, although the examples the Judge cited relate only to data investigations within United States, not internationally.

The judgment then moved to 'practical considerations' of accepting Microsoft's territorial arguments, stating that 'if the territorial restrictions on conventional warrants applied to warrants issued under [the SCA], the burden on the government would be substantial, and law enforcement efforts would be seriously impeded.' Therefore the Judge concluded that, notwithstanding that the Microsoft position was 'not inconsistent with the statutory is difficult to believe that, in light of the practical consequences that would follow, Congress intended to limit the reach of SCA Warrants to data stored in the United States'.

The fact that a process already exists for the service of search warrants internationally under a Mutual Legal Assistance Treaty ('MLAT') did not negate the need for the Judge to apply the SCA to Irish data. The Judge noted that the MLAT process tended to be slow, and it requires the cooperation of two governments. The Judge noted that (heaven forbid) a nation receiving a MLAT request from the US was likely to have discretion to decline the request for assistance. The Judge quoted examples of the MLATs between US and Canada, and between US and the UK.

Notably, Judge Francis IV did not feel that it was necessary to consider the terms of the MLAT between Ireland and the US.

Although clearly irrelevant to the facts at hand, the Judge went on to raise further domestic alarm by referring to Google having reportedly explored the possibility of establishing true 'offshore' server farms located at sea beyond the territorial jurisdiction of any nation.

Not prepared to accept such a panacea, the Judge refused to quash the search warrant, resulting in Microsoft being compelled to produce the relevant customer data from its Irish data centre.


The judgment is a perfect illustration of the tensions that exist between EU and US data protection law.

Post-Snowden, European distrust of US surveillance laws is at an all-time high. Further, the US court order ignores the reality that Microsoft Ireland is now indirectly faced with a warrant to transfer copious personal data relating to one of its customers to the US, notwithstanding the provisions of section 11 of the Data Protection Acts 1988 and 2003, which arguably restrict such transfers in the absence of a MLAT or similar Irish law process.

Microsoft appears to face the unpalatable choice of either breaching European data transfer laws or failing to comply with a US court order. The fact that the EU Data Retention Directive (which forms a basis for the retention of communications data for lawful access purposes) has itself been declared invalid by the Court of Justice of the EU (see page 17) further complicates matters.

In short, ISPs are currently caught in a complex legal web whereby EU law appears to require them to retain communications data under an invalid EU Directive, EU law prevents them from sending the data to the US but US court orders can compel them to transfer the data to the US notwithstanding the provisions of Irish or other EU laws.

In short: a challenging world wide legal Web.

Previously published in Data Protection Ireland

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

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
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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