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On December 13, 2017, Jenner & Block filed an amicus brief in the Supreme Court on behalf of the European Union in United States v. Microsoft. The brief, which supports neither party, offers an explanation of the EU data protection rules and asserts the necessity of considering “EU domestic law as it pertains to searches of data stored in the European Union” as well as provides guidance on public international law principles of comity and the extraterritorial application of foreign law.
The matter, which has not yet been scheduled for oral arguments before the Court, questions whether the government can require certain kinds of businesses to turn over communications stored overseas. More specifically, it concerns the application of the Stored Communications Act (SCA), under which electronic communications services cannot voluntarily disclose stored communications unless the government, with a warrant, compels the disclosure. The government requested that Microsoft provide emails from a specific account it contended was being used for drug trafficking. Microsoft refused, arguing that the SCA did not apply because the emails were being held overseas.
While the brief “takes no position on the ultimate question of the SCA’s proper construction under US law,” the European Union states that “the principles of territoriality and comity under public international law [have been] engaged, and the interests and laws of that foreign jurisdiction must be taken into account.” In this case, the relevant foreign law is the General Data Protection Regulation (GDPR), which provides “both general rules for the processing of personal data and specific rules for transfer of personal data to non-EU states.” The GDPR “protects fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data” art. 1(2). Article 5 of the law requires that personal data be “processed lawfully, fairly and in a transparent manner in relation to the data subject.” Storing data and transferring it from the European Union to the United State constitutes data processing which grants the owner certain rights, “such as rights to access data, to rectify errors, to erase data, and to object.” Additional rules apply to transferals of data from the European Union to a non-EU state.
The brief highlights the European Union’s interest in the case, both in that the Court “proceeds based on a correct understanding of EU law,” and to “reaffirm its commitment to international law enforcement cooperation between it and the United States.”
The brief was written by partner Patrick W. Pearsall, who is the Chair of Jenner & Block’s Public International Law practice group, appellate litigation partner Adam Unikowsky, and associate Zachary Schauf.