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Microsoft tries to defend Irish servers from US g-men invasion, again

Appeal begins in Manhattan

Microsoft is continuing its battle against US demands that it hand over e-mail data stored in Ireland, arguing in its appeal that the US government would resist any demand by a foreign government that it hand over data stored in America.

Detailed at Digital Constitution, the Microsoft brief filed on December 8 puts the straightforward case that the US would react with anger to an extra-territorial data request covering US citizens.

Microsoft's brief (PDF>) describes the US government's demand for a handover of the data held in Ireland as a seizure by a foreign government, with Redmond conscripted to act as the government's agent.

The appeal, filed in the Court of Appeals in the Second Circuit in Manhattan, is the latest move in a battle Microsoft has been fighting since New York judge Loretta Preska controversially ruled that since the e-mails the US government wants to seize are “business records” rather than private communications, they're fair game for an American warrant even though the data is stored in Dublin.

Microsoft general council Brad Smith writes in this blog post that the Department of Justice's position “challenges people's ability around the world to rely on the privacy protections of their own governments and laws”.

Smith notes that the prior ruling has also been protested by the EU, whose Commissioner for Justice says “it bypasses existing formal procedures that are agreed between the EU and the US” and that it “may be in breach of international law”. ®

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