There’s a great deal at stake in United States vs. Microsoft Corp., a case due to be heard by the US Supreme Court next month. The ruling passed down by the nine justices could impact European data protection arrangements, trans-Atlantic economic cooperation and even the future of the Internet.
The case hinges on whether US authorities can demand access to customer data stored outside the country. In spite of its massive significance, the case has so far been ignored by the German government. Only now is political resistance picking up in Berlin, shortly before the deadline to submit so-called amicus briefs – depositions with information relevant to a case, filed by parties not directly involved – to the Supreme Court.
“It is a very worrying development – there is a real danger that other countries will also seek access to companies’ data,” Ulrich Kelber said. Mr. Kelber, of the center-left Social Democrats, is a high-ranking parliamentary official in the justice ministry.
His counterpart for digital infrastructure, Dorothee Bär, agreed, insisting it was “absolutely unacceptable” that one country could access data stored in another, simply on the basis of a domestic court decree. “If we let this through, then we wouldn’t have a problem in future if China or Turkey did it in order to get information on so-called enemies of the state living in Germany,” Ms. Bär said. All countries must abide by international agreements and norms, she added.
This case could lead to chaos, with companies forced to break European law or ignore an American court.
US prosecutors see the situation very differently. They assert their right to access anything stored on servers belonging to American companies, even if they are physically located on European soil.
The specific case concerns a suspected drug dealer. In 2013, Microsoft was asked to hand over all the suspect’s emails to US authorities. But the software giant would only grant authorities access to data stored in the US, refusing to hand over emails stored in an account based in Ireland. At a first trial, judges ruled against Microsoft, but the verdict was overturned on appeal, with a higher court deciding that search warrants on foreign servers were a matter for local authorities, not US ones.
The US Justice Department referred the matter to the Supreme Court. The basic question is simple: Can the US government order American companies to hand over data held outside the United States, independently of whether or not the suspect is an American?
In the wake of Edward Snowden’s revelations on the US government’s massive global surveillance programs, US companies have increasingly stored customer data in Europe, where data protection concerns are strong. “A victory for the Justice Department in the Supreme Court would lead to chaos, with companies forced either to break European law or to ignore an American judgement,” Ms. Bär said.
Ms. Bär represents the conservative Bavarian Christian Social Union party, but her views are shared by political opponent Konstantin von Notz, the Green Party spokesperson on digital affairs. He said the case before the Supreme Court impacted one of the “key questions of the digitized world – the question of the application of civil rights in the digital era.”
The German business community is alarmed. “There is no legitimate reason for the United States to want to impose its laws on third countries,” said Stephan Wernicke, head lawyer with the Association of German Chambers of Industry and Commerce, or DIHK. Along with the Confederation of German Industry, the DIHK filed an amicus brief with the Supreme Court, in support of Microsoft’s position. The two associations have been supported by the French business federation MEDEF and the Confederation Lewiatan, Poland’s leading business association.
The European Commission and the Irish government have also formally expressed their concerns to the Supreme Court, and the Society for Civil Rights, a Berlin-based NGO, also intends on submiting an amicus brief. The NGO’s general secretary, Malte Spitz, has warned that the case could lead to a “downward spiral, at the price of data protection.”
There is no legitimate reason for the USA to want to impose its laws on third countries. Stephan Wernicke, head lawyer, Association of German Chambers of Industry and Commerce (DIHK)
It remains an open question whether the Supreme Court will be swayed by the Europeans’ arguments. There are also powerful voices on the other side: So far, 35 US states voiced support for the federal authorities’ attempt to force Microsoft to hand over data.
The Green party is insistent that Germany’s federal government must take a clear stand on the issue. Access to data stored in Europe for foreign authorities would be “utterly fatal” for fundamental civil rights and for the economy, said Dieter Janecek, Green Party spokesperson for economic affairs. “If American authorities gain access, then very soon Russian, Chinese or Turkish authorities will be knocking on the door,” he added. If that were to happen, the likely response would be data protectionism. In a worst case scenario, this could even lead to the end of the Internet as we know it, with the World Wide Web breaking apart into fragmented national spaces.
Mr. von Notz said the federal government had a responsibility to protect the personal data of its citizens. The high standards set by new EU rules on data protection “should not be de facto abolished through a unilateral decision by the US Supreme Court,” he warned: “The German government has to finally take a clear position on this question.”