As Microsoft battles feds on email access, Ireland asks EU to join the fight

The US may end up bypassing European data protection laws, the Irish government said in a request for legal guidance

The Irish government is turning to the European Commission for help dealing with U.S. demands for email stored in Microsoft servers in Ireland and allegedly containing information on drug trafficking. If the Department of Justice gets its way, it may end up bypassing European data protection laws, the Irish government said in a request for legal guidance.

Microsoft is appealing a U.S. district court ruling to hand over the email to U.S. law enforcement.

The court, overruling Microsoft's opposition to a magistrate judge's decision, said that the location of the data was not a relevant factor in deciding whether the U.S. Department of Justice has the authority to seize the data. It also ruled that DOJ prosecutors do not need to seek the cooperation of Irish authorities.

The case is now in front of a U.S. appeals court but meanwhile it "raises important issues about the interface between EU and US law on data protection," specifically in relation to the protection of personal data, the Irish Minister for European Affairs and Data Protection, Dara Murphy, told the European Commission late Tuesday.

"By seeking direct access to data held in the EU through the US judicial system, existing legal mechanisms for mutual assistance between jurisdictions may be being effectively bypassed," Murphy said, adding that the case has given rise to legal uncertainty and the outcome could have potentially serious implications for data protection in the EU.

The Irish government is seeking Commission advice because it thinks there is a pending conflict between the right to privacy, which should be afforded maximum protection, and the need for law enforcement agencies to effective means to fight serious crime.

"This is made ever more complex when different jurisdictions are involved, especially given the ease with which data can be transferred. It is within this context, that I urge the Commission to consider the arguments that Microsoft are making with respect to this case," Murphy said, adding that when it comes to personal data, it is vital to get the process of prosecuting crime right.

The Irish request follows a similar call on the Commission by Digital Europe last Friday. The organization, which represents the world's largest IT, telecom and consumer electronics companies in Europe, including Microsoft, asked the Commission to be more vocal in the debate and to consider filing an amicus brief with the appellate court now handling the case in the U.S.

Loek is Amsterdam Correspondent and covers online privacy, intellectual property, online payment issues as well as EU technology policy and regulation for the IDG News Service. Follow him on Twitter at @loekessers or email tips and comments to loek_essers@idg.com

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