WASHINGTON—A panel of legal experts says that a case in which federal prosecutors are demanding email data from Microsoft that resides on a server in Ireland could result in violations of the U.S. Constitution as well as international law and a variety of treaties.
In that case, Microsoft declined to provide the emails in question when served with a warrant under the terms of the Electronic Communications Privacy Act (ECPA). The company objected, saying that a warrant can't compel the delivery of evidence outside the borders of the United States. The government is using a warrant because it doesn't want Microsoft to tell the sender of the email about the demand for information.
Legal experts in the U.S. and in Europe say that the attempt to gain access to information held on European servers is a violation of international law in addition to an existing mutual assistance treaty already in place between the U.S. and the EU.
Panelist James Garland, a partner in the law firm of Covington & Burling, who represents Microsoft in this case, said that if the federal courts uphold the prosecutor's demands, other nations will have a free hand to gather data from computers in the U.S. This could mean, for example, that China or Russia could sift through the data of U.S. companies within the U.S., using warrants as a pretext, and do it legally.
But the potential damage goes far beyond the threat to corporate data in the U.S. According to Michael Vatis, a partner at Steptoe & Johnson, who represents Verizon, a decision that would allow U.S. prosecutors to ignore foreign privacy rules also would erode trust in U.S. companies.
"This puts American companies at a disadvantage," Vatis said. He noted that senior officials at the EU are expressing alarm at the potential conflict with laws in Europe.
One such official is EU Vice President Viviane Reding, who expressed her concerns in a letter to European Parliament Member Sophie in 't Veld, which was provided by Ms. Veld, who represents The Netherlands.
"The [European] Commission's concern is that the extraterritorial application of foreign laws (and orders to companies based thereon) may be in breach of international law and may impede the attainment of the protection of individuals guaranteed in the Union," she wrote. Reding noted that the effect of the U.S. District Court magistrate order is that it bypasses existing formal procedures between the U.S. and the EU.