Microsoft back in court over US access to Irish servers - 'could have impact' on Safe Harbour talks, says firm

The case rolls on, but at what cost?

Microsoft is concerned that the upcoming recommencement of its legal battle to prevent the US government from accessing sensitive data in a data centre located in Ireland could have an impact on ongoing Safe Harbour negotiations between the EU and the US.

This is according to John Frank, Microsoft's VP for EU government affairs, who was discussing the second hearing in the US Circuit Court of Appeals in New York during a recent interview published by Politico.eu.

"An adverse ruling could have an impact on the current Safe Harbour discussions by exposing a gap in US legal protections," said Frank, suggesting that the key question would be "whether the US government can reach into a European data centre to obtain the personal communications of EU citizens without paying any attention to EU law".

US and EU lawmakers are trying to renegotiate the 15-year-old Safe Harbour pact by the end of this month.

The Microsoft case has been rolling on since late 2013, when the US Department of Justice (DOJ) insisted it could access the Irish data centre via a criminal search warrant in order to view files that it said were required in pursuing the prosecution of a criminal.

In refusing, Microsoft's reasoning was that the request should be made to the Irish authorities under the Mutual Legal Assistance Treaty (MLAT), as although Microsoft is a US-based company, the data itself is not located in the US, and thus is not covered directly by a US criminal search warrant.

With two judges already ruling in favour of the DOJ (hence the upcoming second appeal), a third ruling of this type would potentially fuel the collapse of whatever is set to update or replace Safe Harbour; if the US successfully extracts data from the data centre in Ireland, the very core of the EU's Data Protection Directive will be broken - transferring the data to the US, when that country has not met EU data protection standards.

Back in November 2015, Microsoft CEO Satya Nadella made it clear that Microsoft is committed to protecting its UK customers from the collapse of Safe Harbour by investing in local data centres, which are due to open in 2016.