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Does US Have Right To Data On Overseas Servers? We're About To Find Out (arstechnica.com)
Long-time Slashdot reader quotes Ars Technica:
The Justice Department on Friday petitioned the US Supreme Court to step into an international legal thicket, one that asks whether US search warrants extend to data stored on foreign servers. The US government says it has the legal right, with a valid court warrant, to reach into the world's servers with the assistance of the tech sector, no matter where the data is stored.
The request for Supreme Court intervention concerns a 4-year-old legal battle between Microsoft and the US government over data stored on Dublin, Ireland servers. The US government has a valid warrant for the e-mail as part of a drug investigation. Microsoft balked at the warrant, and convinced a federal appeals court that US law does not apply to foreign data.
According to the article, the U.S. government told the court that national security was at risk.
The request for Supreme Court intervention concerns a 4-year-old legal battle between Microsoft and the US government over data stored on Dublin, Ireland servers. The US government has a valid warrant for the e-mail as part of a drug investigation. Microsoft balked at the warrant, and convinced a federal appeals court that US law does not apply to foreign data.
According to the article, the U.S. government told the court that national security was at risk.
What we *will* find out is the opinion of an American court, which has no international power. The proper place for this request is the international court of justice in the Netherlands. Unfortunately the US is the only non-dictatorial country that doesn't recognize this court.
...but it seems rather reasonable that if a court of law orders you to submit something, the fact that you had stored in another country shouldn't be much of an excuse for not doing so.
The whole crux of the matter is a thing US law enforcement uses called "The Fishing Expedition". If the US had a legitimate legal need for this information all they would need to do is petition a foreign court and get a foreign court order (not that hard to do if an actual investigation is being conducted). Unfortunately for US law enforcement, INTERPOL and foreign courts usually require probable cause and actual evidence of wrongdoing before they will issue such an order, thus the attempt to back-door around that requirement.
A subsidiary is a local company established under local laws and subject to all local laws. It will have its own board of directors - who may well all be employees of the owning company, but still have a separate duty to obey the law. If such a subsidiary breaks the local law, it is a criminal offence and the directors become liable. If they are outside the country, the assets of the company may be seized.
If MS sets up the Irish subsidiary to own and operate the servers, it will be impossible for that subsidiary to obey the US order - because it is a separate legal entity which the US courts have no jurisdiction over.
Between those two legal doctrines, the case is clear. If MS DIDN'T vest ownership in its Irish subsidiary, then it is an idiot. This appears to be part of the story here...