#CyberFLASH: U.S. law can’t force American service providers to turn over foreign data: Court

Close up of wooden gavel at the computer keyboardOrganizations worried about the ability of American law enforcement agencies to get at electronic data in foreign data centres have at least some temporary relief after a U.S. federal appeal court ruled the government can’t force Microsoft to turn over a customer’s email held in Ireland.

In a decision released Thursday the court said a search warrant issued under the Stored Communications Act (SCA), which obliges U.S.-based service providers to hand over electronic records under certain circumstances, cannot apply to data held outside the United States and its territories.

Neither the SCA, nor its sister legislation, the Electronic Communications Privacy Act, implicitly or explicitly envision the application of warrants overseas, the appeal court ruled.

A lower court held Microsoft in contempt for refusing to obey the warrant following a long court fight that began in 2013 when the government sought email of a suspected narcotics dealer.

However, while the appeal court decision stands for now, the Obama administration could take the fight to the U.S. Supreme Court. And in an interview Halifax privacy lawyer David Fraser noted Congress could also amend the SCA to specifically say its warrants and subpoenas apply outside the U.S.

The ruling “is one which with I am pleased,” said Fraser, who acts for a number of U.S. technology companies in Canada who intervened in the case. “This is a very important case for determining some very important questions for determining, at least in this case, how far the United States government can reach through the Internet but outside the territory of the United States to compel access to content. But in the big picture it also relates to an will likely have an effect on the extent can other countries do the same sort of thing.”

He noted a growing number of privacy lawyers and professionals are watching this case, particularly after the revelations of former NSA contractor Edward Snowden on the electronic data gathering power of a number of countries, including Canada.

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