WASHINGTON—In response to the decision from the 2nd U.S. Circuit Court of Appeals in New York reversing a 2014 ruling ordering Microsoft to turn over the contents of a customer’s email account stored on an Irish server, the Information Technology and Innovation Foundation, a tech policy think tank, today released the following statement from Daniel Castro, vice president:
We are pleased to see that the Court has recognized that the Stored Communications Act does not allow the government to compel a service provider, such as Microsoft, to produce the private data of its customers when that information is located abroad. As we argued almost two years ago, “the question here isn't whether the U.S. government can gain lawful access to this data, but rather the process it should use to do so. Instead of using a search warrant, the U.S. government agency in question could have sought access to this account information using a Mutual Legal Assistance Treaty [MLAT]. MLATs are agreements designed for law enforcement agencies to receive and provide assistance to their counterparts in other countries. The U.S. has MLATs with more than 50 countries, including Ireland.”
While this ruling helps clarify an important question about the privacy of data stored in the cloud, more reforms are still needed to prevent negative consequences from this decision. The risk now is that foreign governments may try to force companies to store data within their borders to make it impossible for U.S. officials to execute a search warrant, an outcome that would raise costs for consumers and limit innovation. To address this concern, Congress and the administration should accelerate efforts to improve the MLAT process and create a common global framework for lawful government access to data stored in the cloud. Improving the MLAT process would allow the United States to develop rules that would both meet the needs of law enforcement agencies operating in a digital world and keep the U.S. tech sector competitive globally. By working to create a global intergovernmental data access pact, the United States can begin to reassure people at home and abroad that it respects privacy and civil liberties while also allowing the U.S. tech sector to thrive and not diminishing legitimate law enforcement capabilities.
