Oreste Pollicino Signs an Amicus Brief for the United States Supreme Court
WITH A GROUP OF EUROPEAN SCHOLARS OF THE RIGHT TO PRIVACY, THE PROFESSOR OF CONSTITUTIONAL LAW DEFENDS THE GREATER EUROPEAN SENSITIVITY TO THE RIGHTS TO PRIVACY AND DATA PROTECTION IN A UNITED STATES OF AMERICA VS. MICROSOFT CASEOreste Pollicino, Full Professor of Constitutional Law at Bocconi, is one of the 21 signatories of an amicus brief for the US Supreme Court, an opinion expressed by a group of European scholars of the right to privacy on a case that pits the US government against Microsoft.
Amicus briefs are voluntary opinions that can be filed to American Courts of Appeal (with the permission of the Court and the agreement of the party the amicus brief supports) by parties or organizations not involved in the case, usually in issues of public interest.
In 2013, Microsoft received a search and seizure warrant from the US government regarding the personal data of a person who used the email service provided by Microsoft. The subject's data, to which the US government requested access, were stored in Microsoft's Irish data center. The multinational refused to provide the US administration with such data, arguing that the relevant legislation, the US Stored Communications Data (SCA), allows the administration to only collect data on US territory and not abroad. Therefore, the relevant legal problem is the extra-territorial application of the SCA.
In 2014, a New York District Court judge decided against Microsoft, claiming that the SCA should not be subject to territorial limitations. Microsoft challenged that decision before the United States Court of Appeals for the Second Circuit which, in 2016, upheld the multinational's view and invalidated the mandate because it was not applicable outside the United States. Finally, the U. S. Department of Justice appealed to the Supreme Court and the hearing took place on February 27th. The decision is expected before the summer.
“The purpose of the amicus brief of the European scholars of data protection, which speaks in favor of Microsoft”, explains Pollicino, “is to show how the Supreme Court should take into account the different and greater European sensitivity to the protection of privacy. The rights to data protection and privacy in Europe are constitutional rights, as defined in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union”.
At the hearing on 27 February, the lawyers and judges of the Supreme Court, and notably Associate Justice Sonia Sotomayor, the most sensitive of the Court's current members to privacy protection issues, made explicit reference to some of the arguments of the amicus brief signed by European scholars.
by Fabio Todesco
