In a rare move, the Irish Government has filed an amicus brief in litigation in the United States in a data protection case between Microsoft and the United States, on the grounds that “Ireland has a genuine and legitimate interest in potential infringements by other states of its sovereign rights with respect to its jurisdiction over its territory”. The case is currently before the U.S. Court of Appeals for the Second Circuit in New York.
An amicus brief is where a person or, as here, a government, petitions the court for permission to file a brief on its legal views on the case. It helps to better inform the court in reaching its decision. It is the third time in the history of the State that the Government has availed of this mechanism in the United States.
The case has been described as part of a post-Snowden battle over whether data stored in data centres outside of the US jurisdiction can be the subject of enforceable search warrants. The European data centre at issue is located in premises owned by Microsoft in West Dublin.
The judge in the lower Court ruled that the presumption against authority of Federal Courts to issue warrants for search and seizure of property outside the U.S. territory was rebuttable. Drawing on the US Stored Communications Act, its legislative history, and the practical consequences of adopting the presumption, ruled that it had been rebutted and granted the search warrant. This was held despite the fact that there does exist a mechanism to obtain search warrants internationally, called the Mutual Legal Assistance Treaty (“MLAT”).
It has been noted that Microsoft has been placed in the unsavoury position of having to choose between breaching EU data transfer laws or a US court order. This is further exacerbated by the fact the EU Data Retention Directive has itself been declared unlawful by the EU Court of Justice.
The Irish government has submitted three arguments in the amicus brief: (1) it rejects any implication that it must intervene into foreign court proceedings in order to protect its sovereignty; (2) Ireland facilitates cooperation in the fight against crime, and is willing to apply the MLAT process; and finally, (3) neither party in the case relied on the Irish Supreme Court case of Walsh v National Irish Bank [2013] 1 IESC 4 which may be relevant.