Irish minister warns of conflicting obligations to privacy and disclosure facing US companies

Out-Law News | 04 Sep 2014 | 2:58 pm | 1 min. read

Microsoft may breach EU data protection rules if it bows to US pressure to disclose customer details stored in Ireland, the Irish data protection minister has warned.

Dara Murphy warned of "significant legal uncertainty" if US companies are forced to disclose personal data stored in the EU to US authorities where that disclosure is outside the scope of existing international treaties, according to a report by the Irish Times.

In July Microsoft was ordered by a US district court to disclose the personal data of an email account holder to US law enforcement investigating crime. However, Microsoft has resisted the order and appealed the ruling.

The technology giant has argued that US authorities cannot obtain search warrants that give them access to electronic information stored outside of the US. The Microsoft customer's data in question is stored on servers based in Ireland.

Murphy warned that if Microsoft complied with the US order it could be in breach of Irish and EU data protection laws.

"I am monitoring this case very closely and will be seeking the advice of the [Irish] Data Protection Commissioner as well as the Office of the Attorney General on the implications of this latest ruling,” Murphy said, after the US district court lifted a temporary suspension on the application of the search warrant to Microsoft, according to the Irish Times report.

Compliance with a US court order by a US company to hand over EU-stored personal data "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,” he said.

Murphy said that there is an existing mutual legal assistance treaty (MLAT) between Ireland and the US that the US authorities should engage with if they want to obtain personal data stored in Ireland so as to pursue criminal cases.

"This provides for the due process to be followed for the request, and transfer of data in criminal matters," Murphy said, according to the Irish Times report. "Cooperation in the area of law enforcement is a fundamental element of our international relations, in particular with our partners in the US, which is why the issue of the transfer of the data itself is not objectionable, but rather the process that is being utilised.”

In an initial ruling in the case in April, US district court judge James Francis said that it would be wrong to solely rely on MLATs between the US and other countries to allow the US government to recover information held by US companies but stored abroad. He pointed to the "slow and laborious" process entailed in following the MLATs and said that countries often have the power to reject requests from others too.

Microsoft has received support for its case from other technology companies, including Apple and Cisco.