The U.S. Supreme Court is to hear a second significant case on digital privacy. Although digital data privacy is something that is fast becoming a common issue of debate, there remains a struggle to distinguish what the boundaries are when it comes to owning it or using it.
In this case, the dispute is between technology-giant Microsoft and the U.S. federal government. In 2013, U.S. prosecutors in a drug trafficking investigation obtained a warrant to search a suspect’s emails. It took the warrant to Microsoft demanding access to emails, and they put up a fight to stop access to them.
The American-based company handed over emails held in the U.S., but refused to do the same for emails stored overseas in Ireland. Microsoft argued that if U.S. law enforcement could seize digital data held abroad then other countries could do the same. They feared this could lead to a digital data “free for all” with concerns as to where this would leave a data subject.
The case has made its way through the courts, stumping judges along the way.
Brad Smith, Microsoft’s president and chief legal officer, posed the question:
“If U.S. law enforcement can obtain the emails of foreigners stored outside the United States, what’s to stop the government of another country from getting your emails even though they are located in the United States?”
The Supreme Court will have a lot to consider, including balancing these key elements:
- Personal privacy
- Public safety
- National security
- Law enforcement
On the one hand, the argument is that prosecutors should be given access to the emails to allow them to investigate the case properly and effectively with the use of digital data as evidence. At the same time, should some other country be able to access confidential files in foreign countries in the name of their own laws, how are the data subjects protected?
At the moment, digital data sharing laws are still very premature, and the uncertainty could leave companies like Microsoft in a very difficult place. The company asserts that, “these conflicts can place U.S. companies in the untenable position of being forced to violate foreign privacy laws to comply with U.S. warrants.”
A similar dispute over digital data was seen when Apple refused to help the FBI break into a locked iPhone allegedly used in connection with a mass shooting.
The Supreme Court judges will have a tough road ahead of them as they navigate the intangible world of digital data.
Information is an odd concept that, without a “physical body” as such, can be hard to govern.
At the click of a button it can be created, transferred or deleted. It can be transferred completely or shared and viewed simultaneously.
While International Law provides some answers for cases involving transnational criminals, victims and crimes, the waters remain murky for transnational files held by foreign-based companies about nationals of another country.
Perhaps with extradition laws, countries may have to set up agreements as to how they want to deal with disputes of this kind. In this case, Ireland may need to negotiate an agreement with the U.S. that allows for legitimate digital data sharing while complying with their own laws.
IMPORTANT: advice on this page is intended to be up-to-date for the 'first published date'.
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