NEW YORK—A week after Microsoft filed its appeal of a controversial July 31 ruling on what’s become known as the Ireland Email Case, Microsoft’s top lawyer Brad Smith was joined by supporters to weigh in on the issues at stake if the ruling is upheld.
In a panel led by former ABC News anchor Charlie Gibson, Smith discussed Microsoft’s position in the case. (Pictured from left to right are Gibson; Victoria Espinel, CEO of The Software Alliance; Andrew Pincus, partner, Mayer Brown; and Smith.)
Asked about the Redmond, Wash.-based software giant’s past defeats in the case, Smith said: “The amazing thing about a court case like this is the only thing that matters is who wins the final round.”
Last summer, Manhattan’s U.S. District Judge Loretta Preska ordered the company to turn over Outlook.com emails sought by U.S. Department of Justice that are stored in a data center in Dublin, Ireland. Despite the overseas location, the judge ruled that as a U.S.-based company, Microsoft must produce the emails but stayed the order in order to give Microsoft time to file an appeal.
Reiterating some of his remarks from last week, Smith argued that if the ruling is upheld, the impact may be felt worldwide. “Because if the United States government, after all, takes a certain approach and reaches into data centers in other countries, we have to assume that other governments will follow,” he said.
“And when they are interested in the email of Americans stored in the United States, we will have a difficult precedent with which to grapple,” he added.
Smith revealed that on Dec. 15, several groups are filing 10 amicus curiae, or friend of the court, briefs in the matter of Microsoft’s challenge to the U.S. search warrant. The briefs were signed by 28 technology and media companies, including Apple, Amazon, AT&T, Cisco, eBay, HP, National Public Radio (NPR) and The Washington Post, to name a few. They joined 23 trade associations and 35 leading computer scientists.
Victoria Espinel, CEO of The Software Alliance, formerly the Business Software Alliance (BSA), said the case threatened to undermine not just the cloud computing market. She said “the outcome of this case could have a real impact today” and the damage wouldn’t be contained to the U.S. economy.
Espinel believes that if the court’s decisions stands, it “will make companies and individuals much more reluctant to use the cloud, for good reason. And that has real implications.”
The damage will be measured in trillions of dollars, she suggested. Citing a “very conservative” estimate by economists, Espinel said that if companies use data and cloud services to become just 1 percent more efficient, those efforts will pour $15 trillion into the global economy.
“That is an enormous lost opportunity if companies start pulling back from cloud and all the computing capacity that that brings because they have concerns about how their information is going to be treated,” said Espinel.
Andrew Pincus, a partner at the Mayer Brown law firm and an advisor to the U.S. Chamber of Commerce, argued that data stored in a foreign data center is analogous to pre-digital documents stored in a safe deposit box in an Irish branch of a bank. Serving a warrant to the U.S. bank would prove ineffectual in trying to force the bank in Ireland to produce those documents.
The same protections should apply despite technological progress, asserted Pincus. “And the question is, should that change in technology automatically, without anyone thinking about it, affect a huge expansion of the U.S. government’s power at the expense of other nations?”