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Obama Administration Says the World's Servers Are Ours
An anonymous reader points out this story about the U.S. Justice Department's claim that companies served with valid warrants for data must produce that data even if the data is not stored in the U.S. Global governments, the tech sector, and scholars are closely following a legal flap in which the US Justice Department claims that Microsoft must hand over e-mail stored in Dublin, Ireland. In essence, President Barack Obama's administration claims that any company with operations in the United States must comply with valid warrants for data, even if the content is stored overseas. It's a position Microsoft and companies like Apple say is wrong, arguing that the enforcement of US law stops at the border. A magistrate judge has already sided with the government's position, ruling in April that "the basic principle that an entity lawfully obligated to produce information must do so regardless of the location of that information." Microsoft appealed to a federal judge, and the case is set to be heard on July 31.
Microsoft is based in the United States, so there may be some valid argument here that as an American company, Microsoft data regardless of where "in the cloud" it is stored is subject to American legal rulings.
The *real* question is what about companies that do business here but are based in other countries?
If you want news from today, you have to come back tomorrow.
Just claim the data was lost due to a "hard drive crash." I mean, it worked for the IRS, right?
If this holds, US companies will have trouble competing abroad. Information belonging to a US firm's foreign customer company could be seized without possible recourse, unless the customer hires a US counsel.
Will this influence the tax gimmick where the HQ is overseas so the profits don't have to have taxes paid on them?
Why is it the money can evade the government but the data can't?
The best the US administration can hope for here is to shatter the US software industry into a thousand small associated companies with strict data sharing agreements to handle overseas data. Worst case they slowly succeed at destroying any ability to run a US business that handles overseas customer information. What is the goal here? There is no way that demanding that kind of access will be sustainable (short of all out secrecy which has obviously failed in this instance.)
Does this mean that the US Gov is fine with those same companies turning over all their data to China if a Chinese official decides he wants it? Wonder what other companies this fun can extend to.
Effectively, though perhaps not in the strict legal definition, the purpose of a corporation is to make a profit.
As we can plainly see from Microsoft's conduct over the years, they will break whatever laws they can get away with to make that profit. This lawsuit isn't about Hotmail users' e-mail messages, this is about illegal or otherwise objectionable behavior that they are trying to shield in other countries.
If you're worried about your e-mail and data stored on Microsoft's servers, then let's not mix that up with a corporation's ability to hide illegal, unethical, or immoral behavior within a more compliant state's physical borders.
i fully agree with the troubling implications that the U.S. can subpoena any information regardless of where it physically resides in the world, but the headline is woefully inaccurate. i thought this was Slashdot, not BuzzFeed. very disappointed here.
And the reaction will be that all high tech companies will just leave the USA.
The ruling pertains to anybody who does business in the US. So, they can leave the USA, as long as they don't sell anything in the USA.
That's not got an agenda behind it at all. what it means to say is US owns data of US companies/citizens even if they hide it outside the USA that seems some what reasonable.
I believe that Microsoft is right to claim the US government doesn't have jurisdiction over data stored outside of the United States. There simply MUST be a clear distinction maintained over where something is located, or country borders don't mean anything. If law enforcement in one country can force the production of evidence located in another country, then it's a free for all and borders have no meaning.
For instance... Lets say that a country (not the USA) has strict privacy laws about data collected and stored digitally and how it can be used. Lets say that they strictly forbid the sharing of specific kinds of data without written consent from the individual the data is about. If Microsoft operates in that country and collects data from it's users and then receives a court order for data from the USA for data stored in the country with strict privacy laws, what is Microsoft to do? Violate the court order and obey the laws under which the data was collected and stored OR violate the laws of another country? If borders mean ANYTHING, Microsoft must obey the local laws of the countries they operate in. So if the data is not here in the USA, the USA cannot force production of the data though the courts.
I understand that this is rife for abuse because it allows the hiding of criminal evidence overseas where it is beyond direct USA reach, but there are processes to obtain such evidence though diplomatic and international law enforcement channels in place. For Civil litigation, there are ways to work though other countries legal systems (albeit inconvenient and expensive ones). So, where I get there are problems, we really cannot just unilaterally decide we have the authority to demand a company produce data held overseas and force them hand over evidence which is not within our borders.
Finally, there is the "How would you feel if somebody did it to you?" test. Let's say the US was where the data was located and some other country was demanding that the data be sent back to them and felt they could enforce their will within the USA.... Would we not feel offended? I dare say we would.
"File to fit, pound to insert, paint to match" - Aircraft Maintenance 101
It's interesting that right at this moment, the Obama Adminstration is pushing an international treaty that will make it so that corporations do not have to comply with a country's laws. It's called "TISA" and it's so bad that it was supposed to be secret for five years after it's ratified and put into action. We only know about it because Wikileaks released a leaked portion of it.
Secret laws being adjudicated in secret courts. All at the behest of corporations who then want (like Microsoft) to not have to comply. It's a pretty ugly type of fascism.
You are welcome on my lawn.
The real issue at hand is the difference between a warrent and a subpoena.
The legal requirements to obtain a warrent are rather trivial and obtaining a warrent is rather easy. But a warrent doesn't extend past the boundaries on the United States. A subpoena on the other hand has far stricter oversight and requirements to obtain. But a subpoena requires the one served to provide the information requested regardless of where in the world that information resides.
What's happening is the government is attempting to get the best of both worlds. The trivial requirements of obtaining a warrent, combined with the expanse of a subpoena. And that frankly is wrong and needs to be stopped.
IIRC, information in the possession, custody, or control of a US party is subject to discovery in a civil suit, regardless of where it is located. The company can provide it or lose the case.
There are several types of warrants. What you are describing is just a single warrant generally referred to as a search warrant.
What we have here is a subpoena , or more precisely a subpoena duces tecum . This subpoena has been used in law since before the country was founded and throughout its existence. IT basically means you need to produce something to the court or whatever agency the law allowing it dictates. It's issued by a judge after a lawful request failed in procuring the items. It generally requires substantial knowledge that a person or entity is in possession of them.
Careful what you wish for. If the administration succeeds you'll quickly see the mass exodus of pretty much the entire tech sector of this country that's capable of leaving.
Microsoft is trying the "you can't hold me responsible for yesterday's shooting because the gun is in my other pants" defense.
The law has _always_ held that if you are before the court, everything relevant to the case is before the court.
If this were not the case then the Tobacco and Asbestos companies could have just said "all those meeting minutes and research records are stored in our warehouse in mexico so ha ha, you all lose." Any company or person, on any issue, could just mail the evidence out of state or out of country and get off scott free.
That just never happened.
Just because the evidence is "on a computer" instead of "printed on paper" doesn't make the "other pants" defense viable.
The court is not reaching across a border. Microsoft is _here_. Microsoft does business _here_. The complaint is _here_, and the court is _here_. The proper legal response to "the other pants" gambit is to tell the guy in his shorts to send someone to go get whatever it is from those pants and bring it back.
Criminals don't just "move" their assets to other countries, they "hide" them because if it can be found it's on the table.
Every court. Every country. Every topic. From the beginning of time.
This is no different.
Innocent people shouldn't be forced to pay for inferior software development.
--"Code Complete" Microsoft Press
"The *real* question is what about companies that do business here but are based in other countries?"
No, this is not the right question.
It does not matter where you do business or where you are based at. What matters is what your offence or crime is! Meaning, the reason why you are in court.
Depending on what you did can your status have all different kinds of influence on the outcome or none at all.
Of course, you also have to define what you understand by "being based at" and "doing business in". It often will make little difference. For example when you have to pay your taxes then the difference may only make a difference in which taxes you have to pay, but you will have to pay one or the other tax for sure.
When you are obligated by law to produce the required information then this is how it is. If you have placed the information out of reach for you to get it, or only refuse to get it, then it has got a fair chance to turn into an obstruction of justice and you will find yourself in even more trouble.
The information has not been placed out of reach by MS, it never was in the US. Nor is it MS's information - it is information belonging to one of their customers that happens to be stored on MS servers (that "cloud" thing) - outside of the US.
MS have made a big selling point of their Irish data centre location being in-EU for projects (including government stuff) that have data subject to EU rules where, in law, it may not be sent outside the EU. If MS-Ireland (or whichever MS-co it is) suddenly starts sending data to MS (US) just because head office requested it, then I think a lot of big EU contracts become invalid and/or a lot of big EU projects suddenly become illegal under EU law.
Your problem with posturing about "it is you who will be judged and sentenced by the court" is that it also applies if they do ship their customer's personal data out of the EU in breach of EU laws, it is just that they will then be judged and sentenced by a different court.
Stupid thing is there is a perfectly easy and logical way to do this - simply get a court order (warrant) for the data where it is, in Ireland, from an Irish court. All the EU data protection etc. laws allow for data to be released by court order in the right jurisdiction. So why won't the DOJ do that ?
Couldn't possibly be that they are just on a fishing expedition that they couldn't possibly get past any court where the judge isn't already in their pocket ?
For five years after it becomes law?
Exactly right. This treaty, which creates corporate sovereignty, is being negotiated in secret...from us. Do you really believe for a moment that it's also secret from the companies that will benefit, like Goldman Sachs?
Every president for the past 30 years has been playing for the same team. And the team does not include us.
You are welcome on my lawn.
The part that's dangerous to us is that it is another brick in the wall of corporate sovereignty.
You are welcome on my lawn.
All Your Base Are Belong to Us?
There may be no "I" in team, but there's also no "F" in way.
I would start with the excellent site by Yves Smith, Naked Capitalism. The writers there are not wild-eyed ideologues, but people who have spent careers in the financial industry, working at pretty high levels. They've been all over this story since the Wikileaks documents broke. Remember, it was Wikileaks that published the secret TPP documents as well, which put the efforts to push that treaty through the tunnel on its heels, at least temporarily. Sunshine can be a great disinfectant.
http://www.nakedcapitalism.com...
And in case you need a citation regarding sunlight being a disinfectant, I would give you none other than the great Louis Brandeis:
http://sunlightfoundation.com/...
You are welcome on my lawn.
> We really can't tell the difference between Democrats and Republicans.... This sounds so Bush-like...
So you can know the difference on this issue, the Republicans voted to repeal the law. The law generates negative net revenue, costing more to administer and enforce than it brings in. Generally speaking, Republicans are against burdensome taxes, taxes that only cost money and don't increase revenue. That's more of a Democrat thing.
It will take a long time for those that have linked their personal identity to the man to admit this point... but he always has been a fool.
I've decided to stop wasting my time responding to AC trolls/sockpuppets... so if you want a response from me... login.
"basic failure to understand reality" Pretty much sums up the current administration.
I'm pretty sure this is itself a fallacy. You can't just assume every country operates identically, given the same opportunity. That's just like saying every man would rape a woman given a good opportunity, just because one guy did so.
Iceland hasn't done anything to earn a bad reputation. The US government has.
Well said. The "I'm sure everybody else is just as bad" defence of the USA is annoyingly common on Slashdot, but there are no reasons to expect them to be the same. They differ in how healthy their democracies are (USA has a relatively large distance from the wishes of the individual citizen to the actions of the government (this depends on size of the population, the implementation of democracy and the laws regulating the influence of money)), how much resources they can allocate (if Iceland spent the same fraction of their money on surveilance, they would have about 50 NSA/CIA equivalent employees and store much less than 1% of the world's data for 0.1 years. But there are economics of scale that would lower this further), and how powerful they are internationally (and hence to which degree they can bully other countries into cooperating).
I think the main reason why your data might not be safe in Iceland is that Iceland would bow to pressure from the USA, not that Iceland would covert it itself.
(By the way, EU != Europe. Iceland is not in the EU)