Like the European Commission (see EUROPE 11922), several MEPs decided to express their views on behalf of the EU before the United States Supreme Court in the Microsoft Ireland Warrant Case which sees the Microsoft company in opposition to the US government.
On Thursday 25 January, at the European Parliament committee on civil liberties (LIBE), Jan Philipp Albrecht (Greens/EFA, Germany) presented the amicus brief submitted to the court with his colleagues, Sophie in’t Veld (ALDE, Netherlands), Viviane Reding (EPP, Luxembourg), Birgit Sippel (S&D, Germany) and Axel Voss (EPP, Germany).
“It is not a matter of whether it is legal or illegal to have access to such data”, explained Albrecht, but rather of knowing what legislation must be applied.
We recall that, in this case, the American court must determine whether Microsoft, as a provider of messaging services, should comply with a mandate given under the Stored Communications Act which requires emails kept in Ireland to be divulged to the United States.
In their amicus brief, MEPs point out that “the differences between EU and US rules on data protection” have been expressly recognised in the treaty on mutual judicial assistance between the EU and the United States. This fixes the mechanisms for allowing US law enforcement services to obtain personal data in the EU for American criminal investigations, while maintaining protection under EU law.
Consequently, they say confirmation by the court of the mandate would be tantamount to “circumvention” of the treaty, which would jeopardise the principle of territoriality embodied in European law, and would conflict with the general data protection regulation (GDPR). They thus call on the Court to confirm the decision by the court of appeal in the USA in 2016 in this case, which annulled the mandate.
The Council of Bars and Law Societies of Europe (CCBE), which also submitted an amicus brief, supports the same conclusions. “The extraterritorial application of search warrants could potentially endanger the privacy rights of Europeans, and the rights of lawyers and their clients to engage in confidential communications”, the organisation warns in a press release.
The US Supreme Court will hear the defence arguments in the case on 27 February. The amicus briefs are available at: http://bit.ly/2EclkMD (European Parliament) and http://bit.ly/2DFlfE3 (CCBE). (Original version in French by Marion Fontana)