Case 1:13-mj-02814-UA DISTRICT "I?l lh. SOUTHERN OF NEW YORK lit the Matter ofa \k?at'runt to Search a Certain E-N?taii Account Controlled and Maintained by Action NOR 319,150 \licrosot?t Corporation i DECLARATION OF MICHAEL MCDOWELL i. MICHAEL MCDOWELL. declare as E. I am a Senior Counsei at the Bar of?iroiand. having been called the inner Bar in l987. was Attorney Goncrai oflrolattd from 1999 to 2002, Minister of Justice, Equality and Law Reform from 2002 to 2007, and Deputy Prime Minister from 2006 to 2007. I lel?t government service in 2007. and am now in practice as a Senior {.litittsoi in the Irish High and Supreme Courts. have been engaged by Microsoft as an independent expert to opinc on the issues raised in this case. 2. As Attorney General of iretand, I was togal adviser to the Irish (internment during negotiation and implementation of?the Mutual Legal Assistance Treat}; Bctuccn tho Linitcd States and ire-land, signed January 18, 2001 (the In 3003. the European Union and the United States entered a separate agreement on mutual assistance, which was subsequently applied in relation the U.S.-lreland MLAT. The MLA treaties between Ireland and the United States wort: intended by the treaty signatories to serve as the means for law enforcement authorities in the countries to obtain evidence located in the other trcaty party 3. In 2008. Ireland enactcd the Criminal Justice (Mutual Assistance) Act. 2008, to provide for procedures for responding effectively to requests made under those Case 1:13-mj-02814-UA Document 18 Filed 06/06/14 Page 2 of 4 international agreements (the ?2008 Act?). Pursuant to these procedures, quali?ed LES. authorities are able to seek the assistance ofthe lrish state in obtaining evidence located in lreland that may be relevant to criminal investigations or proceedings in the United States. 4. Requests for assistance are evaluated by lreland?s Central Authority for \lutual Assistance (the ?Centrai Authority?). which is part ot?thc Department ofiustice and Equality. Provided that the assistance requested by the United States would comply with the standards established in the 2008 Act tag. compliance would not prejudice lrish security or sown-eight} the Central Authority will execute the request. Refusai by Ireland to execute a proper request duly made for assistance from US. authorities is very uncommon. 5. To t?ultiil a request for assistance, the Central Authority forwards the request to An Gerda Siochana Ireland?s national police service. Where the information sought is email content. An Garda Siochana apply on an ex partc basis for a search warrant or order from an lrish district o. tithe appiication submitted to the court satis?es the legal standards set out it: the 2008 Act. the judge then forthwith issues a warrant authorising An Garda Siochz'ma to conduct a search ot?the places or persons identi?ed in the application. or an order requiring persons (including u?ebmail service providers} to produce the requested materials The police and} then execute the warrant. or. in the case ol?an order. serve it upon the appropriate recipient. 7. \i'ebmail service providers in Ireland must comply with any warrant or order issued by a district court judge. To the Garda Siochana?s execution ofsuch process is a criminai offense that carries punishment ot?six imprisonment or a ?2500 tine. Case 1:13-mj-02814-UA Document 18 Filed 06/06/14 Page 3 of 4 8. The 2008 Act procedures are a highiy effective means of realizing the treaties? (flbjeCiiVCES. Ireland rarely refuses requests for information made under the treaties as noted above. and the current MIAT procedures for ful?lling these requests are efficient and null-functioning. 9. In the present case, I understand that LES. law enforcement seeks email content stored on Microsoft's servers in Dubiin. Ireland. The aforementioned treaties and procedures were designed to apply under preciseiy these circumstances. The US. government should therefore obtain the etidencc it seeks through the MIA treaties. IO. lreiand?s Data Protection Acts. 1998 to 2063, highlight its sovereign interest in guarding against the exercise of foreign law enforcement activities within its borders b} any means orhcr than the applicabic MLA treaties. a sovereign state and member state ol? the liuropeun Union. Ireland?s data protection 13w. in accordance with EU Directives and the (?ouucil ol? Europe Convention on Data Protection, requires Ireiand to protect the rights ofdata subiccts in relation to data located in thcjurisdiction of?trciand. Absent certain particular C?;Ccpti0tts. disclosure to a third party ot?such data (tic. data that is stored and processed in Ireland) is oniy laxx?t?ul pursuant to orders made by the Irish courts. And in such cases. any disclosure to a third party on the grounds of?iegal ohiigation" or that it is ?necessary for the administration ot?justicc? is only iau-?f?ut where such disclosure is required or mandated by to irish low and subiect to thejurisdiction and controi oi" the Irish courts. 14) Case Document 18 Filed 06/06/14 Page 4 of 4 declare under penalty under the laws either [.?niit?d States Hui: we fwwgaiwg i5 mm azmi curmct. {7 m1 51am: 3N4. I Signed: Miriam! X-?cDoxwli