Michael McDowell: Irish judge’s approval needed for Microsoft to hand over data to US court
With a US federal court having ordered Microsoft to turn over a customer's emails and other data stored in a Dublin data centre to the US government, former Justice Minister and ex-Attorney General Michael McDowell has warned that, according to the Irish law, Microsoft will have to seek the approval of an Irish judge before handing over data stored in Ireland to the US officials.
McDowell's warning comes against the backdrop of a recent ruling - in a case centered on the prosecution of a drug trafficker - by US District Judge Loretta Preska, who had said that a search warrant approved by a federal magistrate judge made it obligatory for Microsoft to hand over any information it controlled, irrespective of where it has been stored.
However, in support of Microsoft, McDowell - who is also a practicing senior counsel - said in a strongly-worded, four-page affidavit that the disclosure of data stored in Ireland is legal if signed off by an Irish judge.
McDowell's argument is based on the fact that Irish law provides for protection of data held in the country from foreign law enforcement agencies.
Pointing out that Irish and European mutual legal assistance treaties and a 2008 criminal justice act cover co-operation with the US seeking data for criminal prosecutions, McDowell said in the affidavit: "The aforementioned treaties and procedures were designed to apply under precisely these circumstances. The US government should therefore obtain the evidence it seeks through the MLA treaties."
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