God Bless Ireland
Perhaps just a glimmering of sanity for the New Year ?
We can only hope.
The Irish government today supported Microsoft in its ongoing fight against US prosecutors – who appear to want access to server hard drives anywhere in the world. Microsoft has garnered serious backing from the technology industry in its case against American investigators. The Feds believe they have the right to access …
The Feds believe they have the right to access emails stored on Microsoft's servers in Ireland;
Uncle Sam Obama thinks it he can lawfully tap up any US company for information, regardless of where that info is stored.
There. Fixed it for ya.
Let's not forget that Obama first authorized, and repeatedly supported, this attempt to grab overseas data.
Google funds far more lobbying and astroturf than its competition across various industries. Google is now the biggest corporate funder of political activity in the USA.
I doubt you would support a smear campaign against Hood and his silencing using lawsuits by Goldman Sachs, or Microsoft, but maybe you would.
I'm sorry I knocked your conspiracy theory over, I can see how that hurts, and that you want it back.
@AO Leaping in here after the article you wrote on the Hood saga anyone would think States Attorney Hood is a friend of yours or something. I know the axe you are grinding does just have Google written on it because you take wild swings at WikiPedia as well. So what's you gripe?
If so, I wonder if I can re-join the Marines just to be sent there and drink some beer?
On the serious side, I'm surprised Ireland didn't push for a warrant valid in Ireland. They imply it but just asked the US to follow procedures... I hope a "screw off until you get us a warrant valid here" statement will be forthcoming.
One suspects that if the US were serious about this particular case they would have been happy to go the treaty route already - that they haven't suggests this has always been about establishing a precedent for doing an end run around international treaties and laws
Microsoft Ireland is already a separate company in order to meet Eu data protection laws. The US court decided that since it was ultimately under Microsoft's control it could be ordered around by a US court.
It's like a court in Switzerland deciding that since a swiss bank is in ultimate control of the loans to the local bank that has your mortgage then Swiss police have a right to enter your home without a warrant.
"There's a huge difference in the eyes of the Constitution sadly."
The data is still held in Ireland, a sovereign state not covered by the US constitution. It doesn't really matter all that much what nationality the data subject is or where s/he is currently living. The data is on Irish soil and the US can't just barge in and take it without following the agreed procedures as laid down in the treaties.
The nationality of the data subject may have a bearing on how agreeable the Irish are to give up the data if said procedures are followed but after the US attempts to ignore the treaty, the Irish may decide to treat the data with the full protections allowed under Irish and EU law and demand the US provide evidence not just a warrant.
Orin Kerr, a law professor knowledgeable about Constitutional and legal privacy issues, has written a couple of times about this as part of the Volokh Conspiracyy:
and Michael Vatis of the Steptoe and Johnson law firm comments on this and the Verizon amicus brief here:
These might be of interest to those interested in going beyond mere opinion about what ought to be.
Someone familiar with US law can, in fact, contribute to a proper understanding of the laws that govern the controversy that is being litigated in a US court. As the government of Ireland apparently recognizes, inasmuch as they have submitted an amicus brief on the matter to the US court.
One assumes that if the US government ultimately loses in the US courts, they will try to attain their objective via the international law enforcement assistance agreements, but for now they seem to be pursuing the US warrant approach on the theory that Microsoft can be compelled, under US law, to provide the access to data it manages, irrespective of its storage location. I do not think this represents good policy, but it may represent good law. The law, in the case at hand, is rather old and probably needs revisions to adjust to technological change over the last quarter century or so.
What Mr. Kerr's entire treatise seems to be missing is that there is a legally binding agreement between the United States and Ireland, one that has been approved by Congress and signed by the President.
The question here is not whether a warrant applies overseas but if the prosecution is required to go through the (legally binding) treaty rather than standard US law.
If the courts eventually rule that treaties can be ignored, then there are a whole raft of implications as international treaties would basically be null & void under US law. Never mind that the courts would have effectively taken away Congress' ability to vote treaties into law.
The downside implications of this are massive, to say the least. But the courts have shown a callous disregard for the downside impacts of their decisions (cf. Citizen United) in favor of ideology...
Re: post by ckm5: The question before the court appears to be whether, under US law, the US court can issue a valid order to Microsoft in the US to produce data that it controls but has stored on a foreign server, in this case in Ireland. The alternative presumably is for the US law enforcement agency to request under the MLAT that Irish authorities compel Microsoft in Ireland to produce the data. Most of the discussion, at least in this thread, seems to assume implicitly that the Irish authorities would deny the request, something that might or might not be true.
Whatever the interaction between the details of US law and the MLAT, it certainly is in Microsoft's business interest that the decision fall on the side of denying the validity of the present warrant and forcing use of the MLAT. However, it might be going a bit far to say that if the decision goes the other way it is a ruling that treaties can be ignored. Both the law and the treaty depend on language that likely is a bit imprecise and ambiguous in matters of computer stored data, and it is possible that underlying Irish and European law has problems as well; this could be a reason that US authorities sought to short cut the process with a US warrant.
In a way I hope that the US government "wins" this case (even though it'll mean everybody loses) to force MS to retrieve the data from it's international servers. Just to see what other countries do when it happens.
I'm curious... will other countries roll over and say "Ok, well that was nice, here is my data stash Uncle Sam" or will the community go "Well up yours, we're cutting off internet access to the US until you get used to the idea of national boundaries"
"Microsoft has made it clear that it will fight the case all the way to the US Supreme Court if necessary. While it has framed this as a privacy argument there's also a strong business case: if the US gets its way, it will kill American cloud businesses, as those customers who don't want US law enforcement snooping though their files on a whim will avoid US companies completely."
It would kill it for a different reason than people moving their business: it would make US-based cloud providers illegal in the EU, under data protection legislation. That's a proper death, much more than people not liking them.
Yeah, do that. You haven't been paying attention this year, have you ?
The NSA officially has jurisdiction over the whole world now, from Washington's point of view at least (other countries tend to disagree, but the White House doesn't even pretend to give a flying one over that anymore).
It's only inside the USA that the NSA officially still needs a warrant, but the NSA does whatever it wants anyway since there is no serious oversight of its activity.
Not really. The H of P rolled over years ago.
It's laughable that some politicians claim to object to the EU (in which they can vote) 'telling us what to do' but seem to have no problem being America's bitch.
Two pertinent perspectives missing from many of the comments to this article are:
(a) most assume that possible decision ramifications in this case will be restricted to Europe "only", and
(b) that European and other International jurisdictions are "easy pushovers" for complying with US Government "strong Arm" political/diplomatic tactics.
There is good evidence from the reactions of many very large International organizations and companies, as well as governments that there is likely to be a great shift"away from" use of "US" owned and/or controlled Data Centers and ISPs, even in foreign locations.
If the US Congress revises Trade/Communications and International treaty laws (unilaterally) to allow demand of data from any entity in USA that communicates overseas, then everyone in the world must wait to see what such imperialistic moves might produce.
Most Americans unfortunately have a very limited worthwhile experience or good understanding of the "realities" that exist in 2014 - 2015 regarding their own country's practical and true (fact based) relationship to the rest of the globe, and make assumptions and decisions - many times erroneous - based solely on US media reports and 'bravado' rhetoric of their politicians/diplomats and talking heads as reported by said US media.
Reality could not be more different.
Given the clear insidious exploitation of Internet infrastructure by US intelligence gathering agencies, any company that uses US based SaaS services or stores corporate data on US based servers is failing their security and fiduciary duties to their shareholders. No US company or server can be considered as all data and communications will be available to the NSA and potentially misused by other US government agencies.
Why would anyone think the NSA (or GCHQ, CSEC, ASD, or any other SIGINT agency) would pay any attention to where data are stored, other than as governed by the laws of their country? …. Tom Dial
Why would anyone think that any quite normally and abnormally curious SIGINT/COMINT/ELINT agency, no matter from where its IT Plundering and MetaDataBase Exploitation Expertise for the Discovery and Recovery/Engagement and Recruitment of New Veins of Expert Tease and Masterclass Alien Control of Creative CyberSpace Command Platforms/InterNetional Space Stations, be governed by laws of countries?
Such is just a phantastical delusion and is never ever to be a possible reality, for the laws of countries are designed to protect the wealth and lives of the few from the hopes and dreams of the many and aspirants. And whenever such is considered and recognised in such circles with quite normally and abnormally curious SIGINT/COMINT/ELINT agencies, as being corrupt and divisive and perverse and a totally unnecessary, conflict producing burden of titanic catastrophic dimension, would it be foolish and naive to not imagine that it be systematically systemically targeted for virtual destruction and practical obliteration.
It is what such agencies and secret intelligence services do in order to survive and justify their being to the few and the masses and the Mass Few Commanding Control.
Local law enforcement rocks up at a company's office with a legal document which says to someone in in IT "You have access to a server. If you don't give us access to the data we want you will be arrested and may well go to jail". The employee will cave. If a state looks to apply sanctions against a company those who run it may stand up for a principle and contest the legal basis of the demand.
What the Irish government can and should do is demand Microsoft (or Google or Apple, or any of the others who use it as a tax haven) hand over data relating to US citizens on stored on US soil or their Irish employees go to jail or their Irish subsidiaries - where all revenue is directed to dodge corporation tax in the UK , France , Germany, etc. - will have to pay massive fines. Only then will countries start to address the question of how data accessible from their territory but stored off shore, (especially data relating to citizens of other countries ) may and may not be accessed.
There once was I, and the learned cat (-:
As near him 'neath the oak I sat
And drank of sweet mead at my leisure
Told me full many tales...
A piece of excellent art -
http://youtu.be/KG0RiHT74yk?list=PL-KYMVbxNNencS3bW_7wdqL7CUgu7wfTy , in order to clarify on the environment.