QC outlines US Supreme Court intervention to Euro politicians

24 Jan


A SENIOR member of Faculty has been to Brussels to brief MEPs on a submission to the US Supreme Court in a case with potentially major implications for privacy rights.

The Council of Bars and Law Societies of Europe (CCBE) has filed an amicus curiae brief in a dispute between the US government and Microsoft.

The US is demanding disclosure, under the Stored Communications Act (SCA), of emails which are stored outside US territory, in Ireland.

Iain Mitchell, QC, is Chair of the CCBE working party on surveillance and contributed substantially to the drafting of the brief.

He said: “The US 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 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.

“The LIBE (civil liberties, justice and home affairs) Committee of the European Parliament has submitted its own amicus curiae brief and the MEPs were grateful for our intervention.”