Irish Government Enters the Legal Battlefield in International Fight over Email Disclosure

In the on-going saga that is Microsoft Corporation v. United States of America, the Irish Government (“Ireland”) has made the decision to enter the fray. Late last year, Ireland commenced its own chapter by filing papers to highlight issues of sovereignty and mechanisms for international disclosure.

This case, as described in our previous post, centres on the request by US authorities for the disclosure of emails held on Dublin-based servers. The case has attracted many such contributions, particularly from a number of technology companies including Amazon, Cisco, Apple and AT&T. In recent weeks, both Microsoft and the US Government have made further submissions in advance of the hearing of Microsoft’s appeal this summer, which we will consider in next week’s post.

Why has Ireland decided to get involved?

Ireland has made its submission to highlight the possible infringement by other states of its sovereign rights regarding jurisdiction over its own territory. In its submission to the US Court of Appeals for the Second Circuit in New York, Ireland makes three points to the court.

1. The effect of not intervening

Ireland states that it does not accept any implication that it must intervene in a foreign court case to protect its sovereignty. It argues that foreign courts are obliged to respect Irish sovereignty (and that of all other nations) whether or not Ireland is a party to the case. In other words, Ireland asserts that it has not consented to a potential infringement of its rights, merely by failure to intervene in the case made before a foreign court.

2. Existing routes ignored

Ireland continues to facilitate cooperation with other states in the fight against crime. This is reflected in the various treaties with nations around the world; the so-called Mutual Legal Assistance Treaty (MLAT) process. In its submission, Ireland points to the co-operative treaty with the United States addressing the issue at hand. In particular, Ireland said it “would be pleased to consider, as expeditiously as possible, a request under the treaty should one be made.”

3. A decision of the Irish Supreme Court

Finally, Ireland highlighted the Irish Supreme Court’s decision in Walsh v National Irish Bank, which it believes is relevant to the appeal and has not previously been considered. This case demonstrates a situation where an order was made to disclose information held outside of Ireland. However, the facts concerned a branch (as opposed to a separate legal entity) of the company, based on the Isle of Man. In that case, the Supreme Court held that, in the absence of alternative means of obtaining information required for a criminal or similar investigation, the Irish courts may order records from an Irish entity on foreign soil. This, however, is an extremely narrow test.

What does this mean?

The Irish submission to the US Court of Appeals joins a long line of submissions from other interested parties. While the US Court may consider each submission in deciding the case, the primary focus will be centred on the arguments of Microsoft and the US, and the interpretation of the relevant US rules.

Ireland’s decision to make a submission in this case underlines the perceived importance of the case and the awaited decision of the US Court. In particular, foreign policy and sovereignty concerns feature prominently. This is not the Irish Government’s first opportunity to comment on the case, with Irish Minister for EU Affairs and Data Protection, Dara Murphy TD, previously categorising the US authorities’ attempts to force disclosure as being “objectionable”.

Support in the Industry

The consequences of this case are likely to be felt by other major technology companies. Many of the big players in the industry, such as Apple and Amazon, have also chosen to file briefs in support of Microsoft’s position. There are already serious concerns and strains evident in some EU jurisdictions over the extent to which the US Government can access data in the cloud, particularly after the Edward Snowden allegations. This ruling, if upheld, has ramifications for foreign policy and for the privacy of citizens outside of the US. The German Government has already stated that it will not be using US servers for data storage unless the decision is overturned. It will be interesting to see how the Court deals with Microsoft’s appeal.

Next week, in advance of the upcoming appeal hearing this summer, we consider the arguments from both sides.
The contents of this publication are to assist access to information and do not constitute legal or other advice. © Copyright Mason Hayes & Curran 2015. All rights reserved. Mason Hayes & Curran  is a member of the EACCNY.