Can the American legal system access personal data held abroad in the framework of a criminal investigation? The US Supreme Court is soon to take a position on this question in the 'Microsoft Ireland Warrant Case' between Microsoft and the US government and it is not without consequences for the European Union.
On Thursday 7 December, the European Commission announced its intention of addressing the Supreme Court on behalf of the EU, submitting an amicus brief to it.
“Given that the transfer of personal data by Microsoft from the EU to the US would fall under the EU data protection rules, the Commission considered it to be in the interest of the EU to make sure that EU data protection rules on international transfers are correctly understood and taken into account by the US Supreme Court”, it states in a press release, adding that it will not be taking position in favour of either party.
The case stems from the issuance by an American judge, in 2013, of a warrant to search folders and emails of a Microsoft account as part of a criminal investigation. Having concluded that the elements sought were located on one of its servers in Ireland, Microsoft refused to transfer the information, arguing that an American court had no powers to issue data search warrants abroad. Following an initial decision in 2014 in favour of the US government, Microsoft was the victor in 2016 at an US court of appeal. The US government, which is challenging this decision, maintains that it is a major obstacle in criminal investigations.
In a statement dated 29 November, the 'article 29' working party, which is made up of the personal data protection authorities of the member states of the EU, stressed that any contravention of the rules set out in the EU general data protection regulation by the law-enforcement authorities of a third country would constitute interference in the territorial sovereignty of a member state of the EU.
The Commission has until 13 December to submit its amicus brief. The US Supreme Court will hear the arguments of the parties in early 2018 and will rule by June. (Original version in French by Marion Fontana)