21 December 2017
GENEVA (Issued as received) – The UN Special Rapporteur on the right to privacy has submitted independent expert advice to the US Supreme Court in a landmark case.
The court is to decide on the validity of a search warrant which requires Microsoft to hand over the entire contents of an email account housed in its data centre located in Ireland.
Joseph Cannataci’s expert advice – known as an amicus curiae brief – does not take sides in the case. It highlights the potential impact of the Supreme Court ruling on the right to privacy, and advises the court to decide the case only on its specific merits and not beyond, as this may have unintended but adverse implications for the protection of the right to privacy worldwide.
“There is a risk that States which disregard the right to privacy could use the Supreme Court’s decision to legitimize unlawful interference with this right,” the Special Rapporteur warned.
“This is a hard case that raises tough questions about who has jurisdiction over data stored in the cloud, which is used by millions of people,” he said.
“Courts have no easy answers to these questions because there are no precise international regulations in place on how international law treats cyberspace, a gap which can currently be filled only by States working closely together,” he added.
The Special Rapporteur and the European MAPPING (Managing Alternatives for Privacy, Property and Internet Governance) Project are currently working on a draft legal instrument that would establish an international regulatory framework for evaluating government requests for cloud data.
Given the central position of the US in the international system and in providing cloud services internationally, Mr. Cannataci views the active and engaged participation of the US Government in efforts in regulating cyberspace in this regard as essential.
In his expert advice, submitted on 13 December, the Special Rapporteur cautioned the court against any decision that might dampen the Government’s participation in those efforts.
The Special Rapporteur added that the process of putting together the amicus curiae brief had been a great example of international collaboration, thanking the Cyberlaw Clinic at Harvard Law School, the Security, Technology and e-Privacy Research Group of the University of Groningen (STeP) and the Department of Information Policy and Governance of the University of Malta.
The Supreme Court will hear oral argument in the case, United States v. Microsoft Corp. (No. 17-2), in 2018. A decision is expected by the end of June 2018.
Prof. Joseph Cannataci (Malta) was appointed as the first Special Rapporteur on the right to privacy by the Human Rights Council in July 2015. He is an academic who has had a pioneering role in the development on data protection, privacy law and technology law. A UK Chartered Information Technology Professional & Fellow of the British Computer Society, he also continues to act as Expert Consultant to a number of international organisations.
The Special Rapporteurs 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 organization and serve in their individual capacity.
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