Iain Mitchell QC involved in presentation of US Supreme Court Amicus Curiae Brief

5th February 2018

The Council of Bars and Law Societies of Europe (CCBE) has filed an amicus curiae brief in the U.S. Supreme Court in support of Microsoft Corporation in a case that has the potential to dramatically expand the US government’s ability to seize electronic communications that are stored outside of the territory of the United States. As Chair of the CCBE working party on Surveillance, Tanfield Chambers member, Iain Mitchell QC (Scotland) both instructed the brief, which was filed by Washington DC firm, Cleary Gottlieb, and contributed substantially to its drafting.

The case, United States v Microsoft Corp, No. 17-2, concerns whether Microsoft, an email service provider, must comply with a warrant issued pursuant to the Stored Communications Act (SCA) demanding the disclosure in the United States of email communications stored in Ireland.

Under the SCA, the government may compel service providers like Microsoft to execute a warrant issued under the SCA by searching for, assembling, and reproducing electronic communications. Microsoft refused to comply with the warrant and was held in contempt.

The Second Circuit, in reviewing the case, applied the presumption against extraterritoriality set out in Morrison v National Australia Bank Ltd, 561 U.S. 247 (2010), and held, unanimously, that the district court lacked authority to enforce the warrant against Microsoft because the statute could not be applied to reach communications outside the United States.

The Supreme Court will hear oral argument in the case on 27th February, 2018.

The CCBE, which, through its member bars and law societies in forty-five member states of the Council of Europe (including twenty-eight member states of the European Union), represents more than one million European lawyers, brings an important perspective to this case, including highlighting the potential threat to international order under which cross-border law enforcement is routinely conducted, the privacy rights of persons whose data is stored in the EU, and the protection of legal professional privilege.

Mr. Mitchell commented:

“The United States Government claims that seizure by it of personal data and other electronic documents is permitted under the SCA as a “domestic” warrant if the person on whom the warrant is served is able to access the data or other electronic material from the United States, irrespective of where the data is stored. This may set up an irreconcilable conflict between US and other laws. For example, for Microsoft to refuse to hand over the data stored in Ireland would, if the US Government is correct, place Microsoft in contempt, yet for it to do what the US Government requires would put it in breach of EU data protection laws.

“This is concerning both in respect to ECHR article 8 rights, but is also of particular concern where the material in question is protected by Legal Professional Privilege, both under article 8 and article 6.

“The aim of our brief is to seek to articulate why the CCBE believes that the US Government’s analysis is fundamentally misconceived. We see it as a matter of great importance in protecting people’s privacy rights in general, and the right to a fair trial in particular.”

Mr. Mitchell is due to brief MEPs in Brussels on Tuesday on the CCBE’s intervention.

Click here for a copy of the CCBE’s brief.

Note: Iain Mitchell QC is a Scottish silk and English barrister. He is Chair of the CCBE Surveillance Working Party and the Faculty of Advocates representative on the UK delegation to the CCBE. He is chair of the Scottish Society for Computers and Law and a member of both the IT Panel and the GDPR sub-group of the Bar.



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