Federal Court Ruling Orders Microsoft to Violate International Law

By Wayne Rash  |  Posted 2014-08-03 Print this article Print
Email Ruling

"The legal issues involved are complex and relate to U.S. and E.U. law as well as Irish law. They remain under examination by relevant Irish authorities and also at E.U. level."

I suspect that part of the reason that the Irish government is waiting to see what happens before it does anything is that a great deal depends on what happens next in this case. However, Microsoft has just started gearing up the appeal process, and the Second Circuit Court hasn't scheduled a hearing. While it's likely that the court will schedule a hearing quickly, it's anybody's guess what the ultimate outcome will be.

It's unlikely that the Second Circuit Court will be the final stop for this decision. No matter what the circuit court decides, it's certain to be appealed to the U.S. Supreme Court. Whether the Court actually hears the case, assuming it is appealed, depends on whether it agrees there are important constitutional issues that need to be resolved.

"This case involves important questions of federal law," said Miller Baker, a partner at McDermott Will and Emery, and an expert on the Supreme Court. "The issues are the kind that warrant Supreme Court review," he said, including foreign relations and treaties.

Those important issues extend far beyond just the federal prosecutors' desire to read some emails. If the government prevails and succeeds in gaining access to the emails on the Irish server, the consequences could be serious and long-lasting.

In addition to hurting U.S. companies' ability to competitively engage in international trade, such a ruling would open U.S. companies to examination by foreign governments. The obvious possibilities could easily be such things as a warrant from a Chinese court to examine intellectual property and trade secrets at U.S. defense contractors.

Without a treaty to fall back on, U.S. companies would be prime pickings. The government would be powerless to even object, much less prevent such access simply because it would have authorized such things itself.

The obvious question then becomes, why is a federal prosecutor so hell-bent on getting these emails, when there's already a perfectly legal means to go about getting it through proper channels? The reason the government gives is that using the existing process under mutual assistance treaties is "cumbersome." But perhaps there's a better, and more likely, explanation.

"Maybe they're just lazy," Baker said. If so, then the prosecutor appears to be finding out that a shortcut through the Constitution isn't as easy as he thought.



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