No. 17-2
In the

Supreme Court of the United States
UNITED STATES OF AMERICA,
Petitioner,
v.
MICROSOFT CORPORATION,
Respondent.
On Writ of Certiorari to the United States
Court of A ppeals for the Second Circuit

BRIEF FOR IRELAND AS AMICUS CURIAE
IN SUPPORT OF NEITHER PARTY
Charles D. Ray
McCarter & English, LLP
CityPlace I
185 Asylum Street
Hartford, CT 06103
(860) 275-6700

Thomas J. Goodwin
Counsel of Record
McCarter & English, LLP
Four Gateway Center
100 Mulberry Street
Newark, NJ 07102
(973) 622-4444
tgoodwin@mccarter.com

Counsel for Amicus Curiae
277648

A
(800) 274-3321 • (800) 359-6859

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TABLE OF CONTENTS
Page
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii
INTEREST OF THE AMICUS CURIAE . . . . . . . . . . 1
SUMMARY OF THE ARGUMENT  . . . . . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
I.  National Sovereignty Is Never Waived
By Non-Intervention in Foreign Domestic
 
Court Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . 2
II.  Ireland Is Willing To Apply The MLAT
 
Process To This Warrant  . . . . . . . . . . . . . . . . . . . 3
III.  The Supreme Court of Ireland case of Walsh
 
v National Irish Bank [2013] 1ESC 2 . . . . . . . . . 5
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

 ii
TABLE OF CITED AUTHORITIES
Page
CASES
In the Matter of a Warrant to Search a Certain
E-mail Account Controlled and Maintained
by Microsoft Corporation,
  829 F.3d 197 (2016), rehearing en banc denied,
  855 F.3d 53 (2d Cir. 2017) . . . . . . . . . . . . . . . . . . . . . . . 1
Walsh v. National Irish Bank,
  [2013] 1ESC 2  . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 6
TREATIES AND STATUTES
Treaty between the Government of the United States of
America and the Government of Ireland on Mutual
  Legal Assistance in Criminal Matters . . . . . . . . 2, 3, 8
Criminal Justice (Mutual Assistance) Act of 2008,
  No. 7 of 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Taxes Consolidation Act of 1997, Section 908 . . . . . . . . . 5
RULES OF THE SUPREME COURT OF THE
UNITED STATES
Rule 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
OTHER AUTHORITIES
Restatement (Third) of The Foreign Relations Law
  of the United States § 442(2) (1987) . . . . . . . . . . . . . . 3

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INTEREST OF THE AMICUS CURIAE1
Ireland is an internationally-recognized sovereign
nation state. The United States recognizes and maintains
diplomatic relations with Ireland.
The warrant under appeal orders Respondent to
produce in the United States documents that it maintains
reside in Ireland. Ireland has a genuine and legitimate
interest in potential infringements by other states of its
sovereign rights with respect to its jurisdiction over its
sovereign territory.
Ireland files this amicus curiae brief with the consent
of both parties, as evidenced by blanket letters of consent
filed with this Court on November 9, 2017.
SUMMARY OF THE ARGUMENT
The subject of this appeal is a judgment of the United
States Court of Appeals for the Second Circuit decided
July 14, 2016: In the Matter of a Warrant to Search a
Certain E-mail Account Controlled and Maintained by
Microsoft Corporation, 829 F.3d 197 (2016), rehearing
en banc denied, 855 F.3d 53 (2d Cir. 2017). Ireland
respectfully makes three points in this amicus brief.
1.  Pursuant to Rule 37.6 of the Rules of the Supreme Court
of the United States, the amicus curiae states that: a) this brief
was not authored, in whole or in part, by counsel for a party; b)
neither a party nor a party’s counsel made a monetary contribution
that was intended to fund preparing or submitting this brief; and
c) no person – other than the amicus curiae or its counsel – made
a monetary contribution that was intended to fund preparing or
submitting this brief.

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First, Ireland does not accept any implication that it
is required to intervene into foreign court proceedings to
protect its sovereignty.
Second, Ireland continues to facilitate cooperation
with other states, including the United States, in the fight
against crime. Indeed, Ireland and the United States
are already parties to a treaty addressing the subject of
this appeal, namely the Treaty between the Government
of Ireland and the Government of the United States of
America on Mutual Legal Assistance done on January
18, 2001 (“MLAT”). Ireland therefore considers that the
procedures provided for in the MLAT represent the most
appropriate means to address requests such as those
which are the object of the warrant in question.
Third, Ireland notes that no party below cited or
argued the Supreme Court of Ireland case of Walsh v
National Irish Bank [2013] 1ESC 2, which may be relevant
to the subject of the appeal.
ARGUMENT
I.  National Sovereig nty Is Never Waived By
Non-Intervention in Foreign Domestic Court
Proceedings
The implication of Petitioner’s argument is that any
conflict between United States and Irish law is speculative
unless Ireland actively asserts it within United States
legal proceedings. Ireland does not accept any implication
that it is required to intervene into foreign court
proceedings to protect its sovereign rights in respect of
its jurisdiction, or that Ireland not intervening is evidence

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of consent to a potential infringement thereof. Ireland
respectfully asserts that foreign courts are obliged to
respect Irish sovereignty (and that of all other sovereign
states) whether or not Ireland is a party or intervener
in the proceedings before them. See, e.g., Restatement
(Third) of The Foreign Relations Law of the United
States § 442(2) (1987) (describing appropriate deference
to conflicts in disclosure law between sovereign states). In
determining its view on this matter, the Supreme Court
should consider whether its decision may conflict with
either Irish and/or EU law.
II.  Ireland Is Willing To Apply The MLAT Process To
This Warrant
Ireland continues to facilitate cooperation with other
states, including the United States, in the fight against
crime and, in this regard, has enacted legislation giving
effect to a large number of international treaties and
instruments providing for mutual legal assistance in
criminal matters. As noted by both the parties and other
amici in the Court of Appeals for the Second Circuit, and
as referenced above, Ireland and the United States are
already parties to a Treaty (the MLAT) addressing the
subject of this appeal. Ireland therefore considers that
the procedures provided for in that Treaty represent
the appropriate means to address requests such as
those which are the object of the warrant in this case.
Accordingly, Ireland remains ready to consider, as
expeditiously as possible, a request under that Treaty, if
and when it be made. 2
2.  The law enabling Ireland to provide mutual legal
assistance to, and seek mutual legal assistance from, other

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countries is contained in the Criminal Justice (Mutual Assistance)
Act of 2008. In brief, the Act primarily includes provisions:
•  relating to the sharing of information and monitoring
of financial transactions for criminal investigation
purposes;
•  enabling the enforcement in Ireland of orders for the
freezing and confiscation of property that could be
evidence or the proceeds of crime;
•  permitting the Minister to request an Irish court to take
evidence for use in criminal proceedings or a criminal
investigation in another country;
•  enabling the transfer of a prisoner to give evidence or
assist a criminal investigation in Ireland and enabling
the transfer of a prisoner to give evidence or assist an
investigation outside Ireland;
•  enabling the Minister to request an Irish court to
summon a witness to give evidence for use outside
Ireland by a television link or telephone link;
•  permitting the taking of identification evidence in
Ireland for use in criminal proceedings or criminal
investigations outside Ireland;
•  empowering the Minister to cause a document requiring
a person to appear as a defendant or witness in criminal
proceedings in another country or any other document
issued by a court or authority in another country in
relation to criminal proceedings to be served on the
person in Ireland;
•  providing for a request from other countries for the
examination of an object or site in Ireland for such
purposes to be complied with;
•  enabling requests for the restitution of stolen property
to be made to other countries and such requests to be
made to Ireland; and,

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III.  The Supreme Court of Ireland case of Walsh v
National Irish Bank [2013] 1ESC 2
It is incumbent on Ireland to acknowledge that the
Supreme Court of Ireland did make an order in the case
of Walsh v National Irish Bank [2013] 1ESC 2, 3 which
may be of some relevance to the proceedings before this
Court. In Walsh, the taxation authorities in Ireland (the
Revenue Commissioners) applied under section 908 of the
Taxes Consolidation Act 1997 for an order for disclosure of
details of an account with the National Irish Bank. Id. at
¶ 1.2. The branch in question was situated outside Ireland
(in the Isle of Man, which is a British crown dependency).
Id. at ¶ 2.3. The High Court (the trial-level court) refused
the order on the grounds that this is a matter for the courts
of the Isle of Man. Id. at ¶¶ 4.1-4.5.
The Supreme Court of Ireland held that, in the
absence of alternative means of obtaining information
required for a criminal or similar investigation, there may
be circumstances in which an Irish court would order the
production of records from an Irish entity on foreign soil,
but would do so only after being competently apprised of
•  enabling representatives of other countries to be present
at the execution of a request in Ireland and enabling
members of the Garda Síochána (Irish police) to be
present at the execution of a request in other countries.
See Criminal Justice (Mutual Assistance) Act of 2008, No. 7 of
2008, available at http://www.irishstatutebook.ie/2008/en/act/
pub/0007/index.html.
3.  The Walsh decision is available at http://www.supremecourt.
ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/eafa3485
12d6d95a80257afe00587a09?OpenDocument).

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whether the execution of the order would violate the law
of the foreign sovereign. Id. at ¶¶ 7.6, 9.3-9.6. A significant
factor in the case was that the branch did not have a
separate corporate identity:
The fact is that the Bank chose to conduct
its business (or at least part of it) in the Isle
of Man by means of a branch rather than by
means of a separate legal entity incorporated
in the Isle of Man and operating as part of the
same group of companies. Doubtless, there
were good reasons for the Bank choosing so to
do. However, such choices have consequences.
The fact remains that the same legal entity
was doing business in the Isle of Man through
one of its branches as did business through
its ordinary branch network in Ireland. The
banking obligations undertaken through the
Isle of Man branch (such as the obligation to
repay monies deposited) were obligations of
the Bank in just the same way as obligations
undertaken through a branch in Dublin or
elsewhere in Ireland.
Id. at ¶ 5.6 (emphasis added).
As noted above, there is a Treaty in place between the
United States and Ireland which addresses the subject of
the appeal.
In Walsh, the Irish Supreme Court accepted that, in
general, a court does not order inspection of documents in
a foreign country and that, where possible, courts should
avoid coming into conflict. However, on the central point

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of whether it had power to order production of documents
by an Irish registered company by one of its branches
situated in a foreign country, the Supreme Court found
that it did. The Supreme Court found that the Taxes
Consolidation Act empowers the Irish taxation authorities
to seek an order that an Irish bank produce records of
accounts held by its customers wherever the information
is situated.
It appears that in certain circumstances, an Irish court
is prepared to order the disclosure by an Irish corporation
of information in its possession, notwithstanding that the
information is physically located in another jurisdiction,
provided certain matters are demonstrated.

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CONCLUSION
Ireland does not accept any implication that it is
required to intervene into foreign court proceedings to
protect its sovereignty. Ireland continues to facilitate
cooperation with other states, including the United States,
in the fight against crime and is ready to consider, as
expeditiously as possible, a request under the MLAT, if
and when it be made. Finally, in the absence of any obvious
error in the interpretation of the Court of Appeals for the
Second Circuit, Ireland would propose that the judgment
be affirmed.
   

Respectfully Submitted,

Charles D. Ray
McCarter & English, LLP
CityPlace I
185 Asylum Street
Hartford, CT 06103
(860) 275-6700

Thomas J. Goodwin
Counsel of Record
McCarter & English, LLP
Four Gateway Center
100 Mulberry Street
Newark, NJ 07102
(973) 622-4444
tgoodwin@mccarter.com

Counsel for Amicus Curiae