University of Malta academic Prof. Joe Cannataci, in his capacity as the UN’s first Special Rapporteur on Privacy, recently submitted an amicus curiae brief to the US Supreme Court in a landmark case about whose law should govern searches and seizures of data stored in ‘the cloud’. The court is currently hearing oral arguments in the case – United States vs Microsoft Corp. (No. 17-2) – commonly known as the Microsoft Ireland case, and is expected to reach its decision before the end of June. At issue is the validity of a search warrant issued by a US federal court that requires Microsoft to turn over the entire contents of an e-mail account housed in its Irish data centre.

Prof. Cannataci’s brief supported neither party to the case, and expressed no view on its outcome. Instead, he urged the court to decide the case as narrowly as possible, while paying careful attention to the potential impacts of its ruling on the right to privacy as it is enshrined in international and domestic law.

“This is a hard case that raises tough questions about who has jurisdiction over data stored in the cloud,” said Prof. Cannataci.

There’s a gap in how international law treats cyberspace that only diplomacy can fill

“Courts have no easy answers to these questions because there’s a gap in how international law treats cyberspace that only diplomacy can fill,” he added. Many such diplomatic efforts are under way, including an initiative by the special rapporteur and the Mapping Project to prepare a draft legal instrument that creates an international process for evaluating government requests for cloud data.

Given the key position of the United States in the international system and in providing cloud computing services to the world, Prof. Cannataci said he views the active and engaged participation of the US government in these diplomatic efforts as essential. He therefore advised the court against taking any decision that might dampen this participation, or that fails to consider how non-rights-respecting countries might wield this precedent to unlawfully interfere with the right to privacy.

“The process of putting together this amicus brief was a great example of international, multi-stakeholder collaboration at work in this field,” said Prof. Cannataci. The Cyberlaw Clinic at Harvard Law School represented Prof. Cannataci before the Supreme Court, and colleagues in the Security, Technology and e-Privacy Research Group of the University of Groningen in the Netherlands and the University of Malta’s Department of Information Policy and Governance, of which Prof. Cannatci is head, provided valuable contributions to the brief.

Prof. Cannataci is also deputy dean of the Faculty of Media and Knowledge Sciences. He was appointed by the UN Human Rights Council as Special Rapporteur on the Right to Privacy in July 2015.

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