University of Malta privacy expert weighs in on landmark US Supreme Court case on government access to cloud data

In his capacity as the UN’s first Special Rapporteur on Privacy, Professor Joe Cannataci, head of the Department of Information Policy and Governance and deputy dean of the Faculty of Media and Knowledge Sciences at the University of Malta, submitted an amicus curiae brief on 13 December to the US Supreme Court in a landmark case about whose law should govern searches and seizures of data stored in “the cloud”.

At issue in what is commonly known as the Microsoft Ireland case is the validity of a search warrant issued by a US federal court that requires Microsoft to turn over the entire contents of an email account housed in its Irish data centre.

Prof. Cannataci’s brief supports neither party to the case and expresses no view on its outcome. Instead, he urges 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. “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 views the active and engaged participation of the US government in these diplomatic efforts as essential. He therefore counsels the Court against 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 is a great example of international, multi-stakeholder collaboration in this field,” said Prof. Cannataci. “I am grateful to the Cyberlaw Clinic at Harvard Law School for representing me before the Supreme Court and to my colleagues in the Security, Technology & e-Privacy Research Group of the University of Groningen in the Netherlands and the Department of Information Policy & Governance of the University of Malta for their valuable contributions to the brief.”

The Supreme Court will hear oral argument in this case, United States v. Microsoft Corp. (No. 17-2) during 2018. A decision is expected before the end of June.

Prof. Joseph Cannataci (Malta) was appointed by the UN Human Rights Council as the Special Rapporteur on the Right to Privacy in July 2015. As Full Professor at the University of Malta, Prof. Cannataci additionally holds the Chair in European Information Policy & Technology Law within the Department of European and Economic Law of the Faculty of Law and is co-director of the Security, Technology & e-Privacy Research Group (STeP) at the University of Groningen. Also as Full Professor, in an adjunct capacity, he is a member of the Security Research Institute and the School of Computer and Security Science at Edith Cowan University in Australia.

The independent experts are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures’ experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organisation and serve in their individual capacity.