The United States Court of Appeals for the Second Circuit (the “Court of Appeals”) has declined the US Department of Justice’s (DoJ) request to rehear a full appeal of Microsoft’s and the DoJ’s Irish data case. Last July, the Court of Appeals ruled in favour of Microsoft (as reported here), and quashed a warrant seeking the disclosure of user content stored in Ireland. The warrant directed Microsoft to seize and produce the contents of a customer’s e-mail account located on an Irish server. The Court of Appeals held that Microsoft need not turn over the emails in question, focussing on the “strong and binding” presumption against extra-territoriality of legislation.

The DoJ requested that the case be reheard in full by the Court of Appeals, claiming that it had misinterpreted the law as to when companies are obliged to disclose data stored on servers in foreign jurisdictions. However, the Court of Appeals ruled in favour of Microsoft and declined to fully rehear the case.

In direct contrast to this ruling in favour of Microsoft, Google has been ordered by a US judge in Philadelphia to hand over customer emails, pursuant to an FBI warrant, from a non-US based server. The US judge, based in the Third Circuit, who ordered Google to comply with an FBI warrant ruled that there was “no meaningful interference” with the customer’s interest in the data being sought. In a statement issued following the ruling, Google commented that there had been a departure from precedent and that it would appeal the decision.

We await the appeal by Google with interest as its case, along with Microsoft’s, has significant implications for the technology industry in Europe.

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Contributed by David Cullen