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Supreme Court Wrestles With Microsoft Data Privacy Fight (reuters.com)
Supreme Court justices on Tuesday wrestled with Microsoft's dispute with the U.S. Justice Department over whether prosecutors can force technology companies to hand over data stored overseas, with some signaling support for the government and others urging Congress to pass a law to resolve the issue. From a report: Chief Justice John Roberts and Justice Samuel Alito, both conservatives, hinted during an hour-long argument in the case at support for the Justice Department's stance that because Microsoft is based in the United States it was obligated to turn over data sought by prosecutors in a U.S. warrant. As the nine justices grappled with the technological complexities of email data storage, liberals Ruth Bader Ginsburg and Sonia Sotomayor questioned whether the court needed to act in the data privacy case in light of Congress now considering bipartisan legislation that would resolve the legal issue. A ruling is due by the end of June.
You should assume the answer is "yes" no matter what the court says. If you have data, don't give it to a corporation in the cloud.
If the US basically tries to assert that their laws trump the national laws in which these US companies operate, then those US companies will pretty much lose business.
The only logical conclusion would be that MS is now effectively an agent of the US government, and the use of their cloud stuff would be illegal in other countries or for certain kinds of data.
AND, this would be reciprocal, as MS would have no choice but to hand over data on US citizens to those local governments.
Don't give me the bullshit answer that it's OK for the US but not for anybody else, because we don't give a fuck.
So good luck when Iran wants to subpoena US records from MS. This is basically setting up a scenario in which the US wants their laws to be extraterritorial, in which case everyone else gets to do it.
Sorry, America, but you can't have it both ways.
Could it not be argued that it is Microsoft Europe, Microsoft Europe is a European company, and it must adhere to European laws?
Assuming there is indeed a European entity.
Wow, sent an e-mail as suggested when clicking on "use classic" banner, and got a fast response that addressed my msg
Microsoft owns that data, thus it is Microsoft property, and since Microsoft is an american citizen, it must adhere to American laws.
Yes, but any American citizen in Europe must obey European laws. If you happen to be a holocaust denier and get arrested in Germany explaining about the US constitution's protections on free speech will get you nowhere.US companies have the choice not to go to Europe but, if they do, they must follow the law there. European law says that Microsoft cannot hand the data over to foreign (US) authorities. There is no law that the US Congress can pass that can relieve them of this responsibility and, if the US forces MS to hand over the data, it will make it close to impossible for US companies to do business in Europe since they will be unable to follow the law and so be liable for financial and possibly criminal penalties.
If the system would require action from someone in target country to access the data, they could truthfully say they can't get the data. That person would have full authority to refuse obeying any command that is against the local law and in case of firing would win big in court.
Imagine company A being created in North Korea. Imagine company B being a company owned and controlled by A incorporated in the US.
If company A is ordered to do something that is legal in NK should then company B comply even though it is illegal in the US?
Of course not, that is ridiculous.
Shouldn't the so-called "conservative" judges be in favor of personal privacy, against governmental overreach, and pro-business? The definition of conservative seems to get twisted more and more every day.
Microsoft owns that data, thus it is Microsoft property, and since Microsoft is an american citizen, it must adhere to American laws.
It's not complicated.
No it is not complicated. American law does not apply outside American territory, period.
If an American company owned elephants in India, and Indian law said that exports of elephants was illegal, should an American judge be able to decide that they must ship their elephants to the US? Does not Indian law apply on Indian soil because it's an American company?
It depends on which country they fear the most. The company or rather it's owners have decided to enter into business in two different countries with different laws. It is up to the company to figure out which direction to go when their is a conflict between those laws, but that doesn't mean they are absolved of the consequences which either or both countries might then implement.
Until MS moves its headquarters to some tax haven that has strong laws about international interference in data. There are probably plenty of tax havens that would craft such a law in order to induce MS to move their HQ to that jurisdiction.
Whatever the outcome, the Justice Department are going to make doing business more difficult in the USA. This was and always will be an own goal by the Justice Department.
The real "Libtards" are the Libertarians!
Yeah, this case is basically the U.S. version of the German cases requiring search engines to strike Nazi results worldwide, and French cases requiring websites abroad to block content deemed illegal in France.
It's one of those situations where you only see the advantages if you consider only yourself (your country). But the disadvantages become obvious when you consider the world as a whole. e.g. "What if you could have sex with anyone who wanted?" Most people think that would be fantastic. "What if anyone could have sex with you?" Suddenly it doesn't seem like such a great idea.
The only decision which makes sense if you want to preserve the integrity of national borders is that U.S. law stops at the U.S. border, German law stops at the German border, French law stops at France's border. If the U.S. wants to get its hands on information Microsoft is storing in Ireland, they should file a request with Irish authorities (similar to an extradition request). Then Ireland can decide whether or not it should honor that request, and legally force Microsoft to turn the info over.
The EU's data protection laws ALREADY applies to all data residing in the EU. No if's but's or maybes and regardless of which way the US supreme court rules that is a simple fact, the US does not have the power or right to override those laws. Should they choose to saw those laws can be overridden by US authorities then they put US companies in a truly fucked up position and will cost companies massive amounts of business and/or see many companies relocate out of the US so they are not put in such a fucked up position. It isn't even like the US has no way to get the data, their are existing international treaties that allow them to request the data through Irelands courts and it would almost certainly be turned over to the US.
Microsoft owns that data, thus it is Microsoft property
NO, Under EU law Microsoft DOES NOT own the data, a user retains all rights to his data even when housed on a companies server and said company must abide by those laws in handling of the data. The Data is governed within the borders of the EU under EU laws.
It's not complicated.
It is extremely complicated as you proved by getting almost everything wrong in your 2 line comment and the fact that even after several years the US supreme court can't work out the right decision.
There are lawyers specialising in this game, it's called Conflict of Law and it pays very well.
Rest assured MS has consulted these specialists years ago.
"The likes of Facebook and WhatsApp are free to those whose privacy is of zero value."
No it is not complicated. American law does not apply outside American territory, period.
That's simply not true. There is a presumption of non-extraterritoriality in U.S. law which means that if a law doesn't state otherwise, it is presumed to apply only on U.S. soil (or U.S. military bases, etc.), but laws can explicitly state that they apply outside the U.S. and U.S. courts have found them enforceable (usually when a citizen returns to the U.S. after a foreign trip.) Notable examples are the Foreign Corrupt Practices Act which make it a crime to bribe a foreign government. Another example is the Child Protect Act which makes it illegal for American citizens to hire child prostitutes even in countries where the practice is legal (eg. in the Netherlands, 16 years olds can legally work as prostitutes, but if a U.S. citizen hires one while visiting Amsterdam, they can be charged when they return to the U.S.). Another example are violations of certain travel restrictions, such as travel to Cuba, etc. Now, whether or not the search warrant in question is presumed to be non-extraterritorial or not is up to the Supreme Court to decide, but your blanket statement is clearly untrue.
If I can be modded down for being a troll, can I be modded up for being an orc, or a balrog?
It is Microsoft Ireland, which has to live by Irish law, regardless of where the parent company is.
It puts Microsoft in a difficult position, because if the US passes a law forcing it to send the data back to the US, it might still be in breach of Irish law, or EU law, and open to prosecution there.
This looks like the US government trying to force it's law on the rest of the world, especially as there is a perfectly good mechanism for asking the Irish for the data, as detailed here.
I am sorry, but you are mistaken. The Supreme Court is under no obligation to take other country's laws into consideration when deciding the meaning of U.S. laws. So your conclusion that if the Supreme Court decides that Microsoft is obligated to turn over data sought by the prosecution which it currently holds in a database located in Europe, it would mean that European companies with a U.S. presence are not subject to U.S. laws is incorrect. It is perfectly possible that the Supreme Court can rule that companies with a presence in the U.S. must follow U.S. law, even if that law is contradictory to the law in other countries where those companies have a presence. Not only is it possible for it to rule that way, it may be the only legitimate way for it to rule depending on how the law is written. It is the job of the President and Congress, primarily Congress, to resolve such conflicts.
The truth is that all men having power ought to be mistrusted. James Madison
there is, and that is indeed the argument. The counterargument is that MS USA completely controls MS EU and therefore should be able and required to force MS EU to pony up despite European laws.
So you're saying the USA can compel someone to break laws in another country? How about if that access required the action of someone in the EU - so they'd need to compel a non-US (EU) citizen to break their own local laws?
I see many twisted outcomes from this - mainly companies are going to just get more creative restricting access to data and compartmentalizing it. Also, this stupidity is going to force more and more companies to 'officially' be based somewhere besides the US. Not like they pay their taxes here anyhow... :)
You can get rich if you own a politician, but you have to be rich to buy one in the first place.
in your case, a US judge can certainly order a US entity to do something which would violate another countries laws, and its up to the entity themselves to resolve that conflict.
Which is exactly what they're doing here.
Go read the legal briefs submitted by various nations and international organizations. The European Commission, the government of the United Kingdom, the government of Ireland, the Council of Bars and Law Societies of Europe, the German Chamber of Industry and Commerce, the French Department of Business, and even the United Nations legal arm for data privacy. All of them said that if the US enforced the order they'd be violating all kinds of international, law, including violating treaties made by the US government. The Mutual Legal Assistance Treaty, MLAT, provides a method to get the data legally.
Urgent MLAT requests are handled immediately. Ireland has already said if the DoJ filed an MLAT request they would act immediately. But the DoJ is looking for powers that bypass judicial review and international legal review. It is a power grab, which they readily admit in the transcript linked to above. Scroll down to page 23 when asked why they can't use MLAT requests.
It is rather terrifying that they are so brazen about it in the SCOTUS arguments. They state that they could use MLAT, but they want the ability to bypass the courts; if they win the precedent: "We don't have to go to a court first. We just issue the instrument. The provider has to make disclosures."
//TODO: Think of witty sig statement