In July 2016, the 2nd Court of Appeals in New York overturned a lower court’s ruling that Microsoft had to comply with a federal warrant as part of a narcotics case for an Outlook.com user’s email data held in Ireland. In a 4-4 vote, the same court recently ruled it wouldn’t revisit its 2016 decision.
Per an Ars Technica report, the court had determined in 2016 that the Stored Communications Act only applies to searches on U.S.-based servers, not on those abroad.
In its rehearing petition, the Justice Department contended that it wasn’t Microsoft’s place to defend its e-mail customers’ privacy and that the court’s ruling compromised national security. Per the federal appellate process, the Justice Department requested a larger en banc panel, which resulted in one vote short of the majority required.
For Microsoft as well as Amazon, Apple, Cisco and numerous other companies that had filed a brief on behalf of Microsoft, the latest ruling is a “major victory for the protection of people’s privacy rights under their own laws rather than the reach of foreign governments.”
But this may not be a lasting victory. The Justice Department may take this to the Supreme Court. Per Ars, it’s “considering its options.”
Incidentally, just two days before the appellate court’s July 14, 2016 decision, the European Union adopted the Privacy Shield, the new framework that offered stronger protection for transatlantic data flows while also providing greater clarity for businesses. That very framework could now be in jeopardy.
Per The National Law Review report, President Trump’s recent hot-button Executive Order focused on immigration and border patrol also includes a provision that would eliminate privacy protection for non-U.S. citizens or residents and, therefore, make the U.S. Privacy Act invalid.
The European Commission swiftly issued an apples-and-oranges statement, noting that the Privacy Shield’s validity does not depend on the U.S. Privacy Act, which pertains to data held by U.S. agencies, not private companies. As The National Law Review points out that one can assume the new administration, its recent Executive Order and “apparent protectionist policies” may rattle the Privacy Shield’s recently laid foundation.
