Irish Eyes Aren’t Smiling on Microsoft Warrant

MANHATTAN (CN) - Breaking its official silence on a warrant Microsoft faces for emails on Dublin servers, the Irish government supported Microsoft's appeal Tuesday with a citation from the Supreme Court of Ireland.

Microsoft and its allies have warned that the U.S. government's warrant for emails abroad could upset international relations, unless prosecutors executed these requests through treaties with the countries where the data is held.

Prosecutors insist that, in the age of cloud computing, this is unnecessary for data held by a U.S.-based company.

Upholding the warrant in New York, U.S. Magistrate Judge James Francis wrote this past April that probing Microsoft's Dublin servers "does not violate the presumption against extraterritorial application of American law."

Chief U.S. District Judge Loretta Preska endorsed this position at a hearing in August.

Though Ireland never tried to intervene during those proceedings, it defended its state sovereignty with a 13-page brief to an appeals court on Tuesday.

"Ireland respectfully asserts that foreign courts are obliged to respect Irish sovereignty (and that of all other sovereign states) whether or not Ireland is a party or intervener in the proceedings before them," the friend-of-the-court brief states (parentheses in original).

Ireland suggested that U.S. prosecutors obtain such a warrant through a Mutual Legal Assistance Treaty (MLAT) that the countries signed in 2001.

When Microsoft had pointed to that treaty previously, prosecutors called that proposal burdensome.

Ireland now says it would process an MLAT "as expeditiously as possible."

The Supreme Court of Ireland's ruling in Walsh v. National Irish Bank is also "potentially relevant" to this case, the brief states.

In that case, Ireland's taxation authority sought information about a bank account in the Isle of Man, and a lower court found that it was out of reach.

Since that bank had no Isle of Man subsidiary, however, Ireland's high court ruled that its tax authority had the right to search its records abroad, the brief notes.

"It appears that in certain circumstances, an Irish court is prepared to order the disclosure by an Irish corporation of information in its possession, notwithstanding that the information is physically located in another jurisdiction, provided certain matters are demonstrated," Ireland wrote.

Microsoft, on the other hand, has a subsidiary in charge of its Dublin servers.

The brief concludes: "Ireland continues to facilitate cooperation with other states, including the United States, in the fight against crime and would be pleased to consider, as expeditiously as possible, a request under the treaty, should one be made."

Microsoft's lawyer Brad Smith said in a statement that Ireland brings a "unique and important perspective to bring to the case."

"The Irish government's engagement underscores that an international dialogue on this issue is not only necessary but possible," Smith added.

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