US Government reaches for data stored on foreign soil

By Cameron Abbott and Harry Crawford

A significant case for digital privacy is currently before the US Supreme Court, with the US Justice Department fighting it out against Microsoft in a bid to gain access to emails held on Microsoft’s servers in Dublin. The US Justice Department is seeking to use a search warrant to access the emails in Ireland in a drug trafficking case. If a precedent is set which allows the US government to access data stored on foreign soil, that could have a significant impact on privacy rights on a global scale.

With the advent of cloud computing, and even with more basic online activities such as using Hotmail or Gmail, data belonging to private citizens might be stored anywhere around the world. For this reason, the US Government does not want to be hampered in its ability to access data of suspects just because, for example, they happen to use an online email service which uses servers in another country instead of servers in the US.

Privacy advocates including Privacy International support Microsoft in resisting the US Justice Department. They argue that allowing the US Government to seize and review data hosted on foreign soil undermines the ability of countries to determine their own privacy and data protection laws. If the US Government could access data hosted in Australia, for example, Australia’s privacy regime would take a hit to its integrity.

Australia’s privacy regime is perceived as robust and the expectation is that data will not be able to be accessed by third parties. As multinationals expand in Australia including by installing more data centres, it would be a shock if those data centres were no more secure than if that customers’ data was hosted in the US. This case is clearly worth keeping an eye on.

The case is due to be heard in the US Supreme Court on 27 February this year with a decision to follow.