Europeans should sit up and take more notice of Microsoft’s lawsuit against the US government over secret access to their data.
Why? Because it affects much more of their data than the Safe Harbour case, according to Microsoft president and lead counsel Brad Smith.
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“The Department of Justice does not need to wait for data to come to the United States to examine it,” he explained. “It can force countries to give it your data without disclosing that access to government, or complying with any European law.”
Smith said 90 per cent of Europeans' data is affected by the Irish warrant case; far more data than is affected by the transatlantic flows governed by safe harbour rules, which Austrian Max Schrems exploded in a European court ruling last year.
Microsoft has sued the US government, challenging its right to access European data in its Dublin data centre. The government can do so because it recognises no territorial limits to US power in its laws: everywhere in the world is the United States.
Smith called it the “defining privacy issue for 2016”. 82 per cent of Facebook’s global user base is served by Dublin.
The case is being heard by the intermediate tier of the appeals courts in the US, and Microsoft expects it to go all the way to the Supreme Court. Smith cited amicus briefs filed by media and technology companies, trade associations, NGOs and computer scientists.
It has potentially cataclysmic consequences for the operation of the US government, particularly in respect to tax revenues.
Microsoft’s chief lawyer thought a safe harbour replacement would be reached eventually. Yet, because it’s “too important to fail”, it may not succeed in the current round of negotiations, which are set to end by January 31st.
But he said it wouldn’t happen just with wishful thinking. The US, having promised to end bulk data collection on its citizens, needed to do a lot more.
Smith didn’t sell his “trustee model” as a cure all, though. Designed to rebuild trust in American companies post-Schrems, the trustee model sees data ownership and management handed to a European company, in the first instances, a subsidiary of Deutsche Telekom. Microsoft employees would have no access to the data at all, and it would therefore comply with European law.
More than 30 companies have filed in support of Microsoft against Uncle Sam, but Google isn't one of them.®