US Appeals Court refuses to allow US government access to customer data on servers abroad

An appeals court has declined to revisit an earlier decision, ruling that the justice department could not force Microsoft to turn over customer data stored on servers outside the US.

The Second Circuit Court of Appeals in New York was split 4-4 in a vote yesterday which left an earlier July decision in place. It is widely seen as a victory for tech companies and privacy advocates.

A justice department spokesperson told ZDNet that the department was "reviewing the decision and its multiple dissenting opinions and considering our options."

According to judge Susan Carney who voted to keep the earlier decision in place, the actions of the justice department would have bypassed existing mutual law enforcement treaties.

"And it is for just this sort of reason that the government has in other circumstances taken a position, somewhat in tension with the one it takes here, that courts should be particularly solicitous of sovereignty concerns when authorising data to be collected in the US but drawn from within the boundaries of a foreign nation," she said.

Not all judges were happy with the decision though and judge Jose Cabranes wrote in a dissent that the decision had "indisputably, and severely, restricted an essential investigative tool used thousands of times a year in important criminal investigations around the country."

According to commentators, the vote set the stage for a potential Supreme Court showdown over the US government's demands that it be able to reach into the world's servers with the assistance of the tech sector.

Justice department spokesman Peter Carr said the decision was being reviewed and the department was "considering our options." Those options included and appeal to the Supreme Court or abiding by the ruling.

While petitioning for a rehearing, the government said Microsoft had no legal right to defend the privacy of its e-mail customers, and that the July ruling was not good for national security. The authorities believed information in the e-mail could aid investigations in a narcotics case.