Microsoft data case may go to Supreme Court

Legal hammer on keyboard

The US Department of Justice wants to drag Microsoft to the Supreme Court to decide on a case focused on whether American authorities can demand data the tech giant holds elsewhere.

The case has been running since 2014, when Microsoft refused to hand over data demanded by US authorities that it held in a datacentre in Ireland. The government and the tech giant have been locked in a court battle for the past three years and, now, it could be set to go to the Supreme Court.

The DoJ has asked the top court to consider the case, though it's yet to agree to hear the arguments and Microsoft hopes it doesn't, despite a string of judges previously finding in its favour.

"It seems backward to keep arguing in court when there is positive momentum in Congress toward better law for everyone," wrote Brad Smith, Microsoft's chief legal officer, in a blog post. "The DoJ's position would put businesses in impossible conflict-of-law situations and hurt the security, jobs, and personal rights of Americans."

Smith noted that both the House and Senate have signalled they'd like to "modernise" the three-decade-old law that the case centres upon, as well as updating data-sharing treaties, which could well render the case moot.

"The litigation path DOJ is now trying to extend in parallel to legislative progress seeks to require the Supreme Court to decide how a law written three decades ago applies to today's global internet," he said. "The previous decision was soundly in our favor, and we're confident our arguments will be persuasive with the Supreme Court."

Smith added that Microsoft would rather continue its work with the DoJ to develop a new law, saying "the legislative path is better".

He also noted that under the General Data Protection Regulation coming into force across Europe in a year, it would be illegal to transfer customer data from Europe to the US for a unilateral search warrant. "This type of legal conflict isn't theoretical," he noted. "We have declined to comply with similar legal orders in Brazil because they conflict with US law."

He suggested that if the decision is reversed and the US successfully wins access to the data in question it will give Microsoft little basis to refuse other countries' demands for information held on American citizens. "This dilemma, which could be possible under today's request from DOJ, would create additional diplomatic tensions with other governments and present a security risk to the email of people and businesses in America," Smith added.

Microsoft does hand over data in emergencies - Smith noted that it handed over emails in 45 minutes following the Charlie Hebdo attack in 2015 - but argued that the US demands would erode trust in the company and the wider tech sector, leading to people eschewing American tech companies.