As court weighs Microsoft case, rest of world feels a big stake in privacy ruling

Tim Johnson, McClatchy Washington Bureau on

Published in Political News

The Microsoft case has elicited an outpouring of briefs from people, organizations and governments around the world. Such amicus briefs to the Supreme Court are legal documents from non-litigants with a strong interest in the case.

Outside of the United States, among those filing such briefs, or joining in them, are the European Commission (on behalf of the European Union), Ireland, the New Zealand privacy commissioner, law societies of Europe, the Australian Privacy Foundation and the United Nations special rapporteur on the right to privacy.

"This case obviously is highly watched," Daskal said. "A straight-up win for the government will be perceived, rightly or wrongly, as the United States claiming authority to access data anywhere without regard to foreign governments' countervailing considerations. And that could harm the U.S. tech industry."

But if Microsoft prevails, she said, "it may completely stymie legitimate investigations simply because some or all of the sought-after data is held outside of the United States."

The bills now before both chambers of Congress, the Clarifying Lawful Overseas Use of Data, or CLOUD, Act, may provide a more feasible framework and pave the way for executive agreements that would allow foreign governments to request data directly from U.S. service providers.

The bills provide "a logical solution for governing cross-border access to data," five big tech firms, including Microsoft and Google, said in a letter to the Senate sponsors on Tuesday.


U.S. service providers, under the proposal, would no longer be shielded when they store data abroad, but it also gives them rights to challenge the requests. It also would incentivize the executive branch to reach bilateral agreements with foreign governments that would allow them to serve direct surveillance demands on U.S. providers.

Not all watchdog groups are in favor of the legislative proposals. In a statement, the Center for Democracy & Technology said it "does not believe the CLOUD Act does enough to protect the privacy of internet users."

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