The Microsoft Ireland case goes before a Second Circuit Court of Appeals on September 9. The case raised this fundamental question: when U.S. law enforcement wants a U.S. email provider to provide them with information about a foreign national, whose law applies? U.S. law or the law of the data subject’s country? Microsoft’s brief, the United States brief, and legal commentary all focus on the location of the data as the key element in reaching a decision. But this leads to insoluble difficulties, not matter who wins the case. A better alternative would focus on the citizenship or the location of the user as the key element. This appropriately takes into account the privacy interest of the user in that country as well as the sovereignty interests of the country itself.
On Monday, several of the largest and most popular IT service providers called for Global Government Surveillance Reform. In a joint letter, AoL, Facebook, Google, LinkedIn, Microsoft, Twitter and Yahoo called on the world’s governments to address the practices and laws regulating government surveillance of individuals and access to their information.