Compliance Management, Network Security, Privacy

Second Circuit nixes gov’t request for full court rehearing on Microsoft Irish server case


The U.S. government's petition for a rehearing of the case involving access to Microsoft customer data stored on a server in Ireland was slapped down by the Second Circuit Court of Appeals on Wednesday.

"The opposite ruling could have resulted in chaos and a privacy disaster," Greg Nojeim, director of the Center for Democracy & Technology's Freedom, Security & Technology Project, said in a release. "Providers would have been subject to conflicting obligations to an even greater extent than is the case today, and users' communications privacy could become, over time, subject to the whims of not just the U.S. government, but also other countries seeking their data." 

A three-judge panel had earlier ruled that warrants from the U.S. government couldn't be used to force Microsoft to hand over emails stored in the Irish server. The government, peeved that data stored overseas would be beyond its reach, then petitioned the court for a rehearing before the full panel of judges.

But Tuesday's split vote, 4-4, on the government's entreaty meant that the earlier ruling in Microsoft's favor would stand.

Noting that the ruling “is definitely not the end of the story," Nojeim maintained that "the government will appeal this decision to the Supreme Court or it will ask Congress to rewrite the law, or it will do both." 

Indeed, Second Circuit Court Judge Susan L. Carney, acknowledging that the Stored Communications Act (SCA) “has been left behind by technology,” wrote that “it is overdue for a congressional revision that would continue to protect privacy but would more effectively balance concerns of international comity with law enforcement needs and service provider obligations in the global context in which this case arose.”

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