back to article Bigger than Safe Harbor: Microsoft prez vows to take down US gov in data protection lawsuit

Europeans should sit up and take more notice of Microsoft’s lawsuit against the US government over secret access to their data. Why? Because it affects much more of their data than the Safe Harbour case, according to Microsoft president and lead counsel Brad Smith. “The Department of Justice does not need to wait for data to …

  1. Anonymous Coward
    Facepalm

    If Microsoft really cares about people's right NOT to be snooped on...

    It should give people the option to turn OFF all this snooping done by their latest OS...

    1. Timmy B

      Re: If Microsoft really cares about people's right NOT to be snooped on...

      Curious.... What can't you turn off?

      1. Aqua Marina

        Curious.... What can't you turn off?

        Anything microsoft decides to rename, and turn back on by default in a Windows Update™

        http://www.theregister.co.uk/2015/11/26/microsoft_renamed_data_slurper_reinserted_windows_10/

        1. Timmy B

          Re: Curious.... What can't you turn off?

          Not the same. MS Changing the name of something in the pre-release cycle isn't the same as after release. Has this changed since release? Interested if it has.

    2. Sirius Lee

      Re: If Microsoft really cares about people's right NOT to be snooped on...

      I down voted you because its a moronic comment. This is a big issue for privacy because the US government wants access to our data on whichever platform it exists if it is ultimately owned by a US company. Microsoft has decided to fight this but could have rolled over much as other companies have done in China. Your response is to have a cheap shot at Microsoft without even bothering to balance it by citing common examples in Android, iOS and others. Pathetic.

      1. Anonymous Coward
        Anonymous Coward

        Re: If Microsoft really cares about people's right NOT to be snooped on...

        > I down voted you because its a moronic comment. This is a big issue for privacy because the US government wants access to our data on whichever platform it exists [...]

        I fully agree with your comment. And if I, as a FOSS developer and supporter who was active at the time of the "GPL is a cancer" unfortunate comments¹, can see how Microsoft's interests here line up with a) mine, b) their customers, and c) pretty much every business entity out there, then why can't Mr. Herbert?

        Besides, what he alludes to is an entirely separate issue and, credit to Microsoft, I understand² their privacy options are clearer and simpler to use than those of many of its competitors (e.g., Google, Facebook).

        ¹ And the lobbying that went with it.

        ² Not first hand experience, may be mistaken.

  2. Camilla Smythe

    Just to be Puerile...

    Just to be Puerile... Windows 10. Cough.

  3. Anonymous Coward
    Anonymous Coward

    No Google?

    No surprise, the oompa-loompas front for the NSA!

  4. Youngone Silver badge
    Black Helicopters

    Winners?

    I don't really see how Microsoft can win this. Even if the Supreme Court rules in their favour, (and there's no guarantee of that), the US spy agencies will just continue to collect whatever data they want and not tell anyone surely.

    1. Woodnag

      Re: Winners?

      It's not about privacy, it's about money.

      MS, FB, Google would like the law to be clear that Gov doesn't have a right to this data. Passing the data becomes a commercial transaction, with contracts, not a obligation, with subpoenas.

      MS, FB, Google have businesses selling their scrutiny of you to other businesses. They want to sell it to Gov too, not be forced to give it away, and not for Gov to accumulate it independently.

      You privacy will still be up to you to maintain. Sorry.

      1. Kurt Meyer

        Re: Winners?

        This, this, this. A thousand times this. It is not a case of Microsoft standing up for the little fellow, they (and the other companies involved) want their thirty pieces of silver.

        1. Anonymous Coward
          Anonymous Coward

          Re: Winners?

          > It is not a case of Microsoft standing up for the little fellow

          It is not. But there are rare times when the interests of the little fellow and those of Big Corp happen to coincide. Having secrets is, after all, as important and legitimate for a company as it is for an individual.

    2. Anonymous Coward
      Anonymous Coward

      Re: Winners?

      > Even if the Supreme Court rules in their favour, (and there's no guarantee of that), the US spy agencies will just continue to collect whatever data they want and not tell anyone surely.

      Then you've got a much bigger problem, as it means every pretence of democracy has gone out the window and you're living in a purely autocratic state. And a weak one, at that.

  5. Lord Schwindratzheim

    Too. Much. Irony.

  6. Anonymous Coward
    Anonymous Coward

    “The Department of Justice does not need to wait for data to come to the United States to examine it,” he explained. “It can force countries US companies to give it your data without disclosing that access to government, or complying with any European law.”

    TFTFH

    Splaffing conspicuously little about these US megacorps' extreme willingness to bend us over for their NSA, amongst all this raucous PR racket... so I'm not even sure what the message of this great PR drive against the wrong TLA is supposed to be...

    "If you've done something wrong, you've no more to fear"?

  7. Grikath

    The crux of the matter..

    "The government can do so because it recognises no territorial limits to US power in its laws: everywhere in the world is the United States."

    And the rest of the world is gearing up to Flip the Finger to that particular notion. And rightly so.

    1. KeithR

      Re: The crux of the matter..

      This is precisely why the Civilised World hates the fecking US of A...

    2. Anonymous Coward
      Anonymous Coward

      Re: The crux of the matter..

      The real crux is that Microsoft is an American company with American employees, and those employees in the US jurisdiction have access to the data. If you don't want a government to have access to data, then ensure that there are no employees in the jurisdiction of the government, or at the bare minimum, ensure that the employees in a particular jurisdiction do not have access to the data that government may want.

      Put another way, If a citizen of a country does something illegal in another country, it is fairly likely that one or both of the countries involved may be interested in investigating. If a company headquartered in a country does something in another country, the same governmental interest is likely to apply.

  8. channel extended
    Black Helicopters

    Obey the law?

    Why? The US never has before.

  9. Mark 85 Silver badge

    The government can do so because it recognises no territorial limits to US power in its laws: everywhere in the world is the United States.

    This is BS and appalling. I'm a US citizen and the fact that my government doesn't respect other countries yet expects them to respect us is just flat stupid and wrong. What the hell are these people thinking except their own bottom line and power base? Or maybe that's the point to it?

    No matter, if you want respect, you have to give respect. And there are those who wonder why there's no respect* in the world.

    *Then again, a common mistake by many is that fear=respect. It doesn't. Fear=contempt.

    1. Wommit

      "This is BS and appalling."

      No, it's not BS and yes it is appalling. If you're a US citizen then have a word with your elected representatives. (Not that that will do any good. It doesn't work in the UK anyway.)

  10. Long John Brass

    Have I got a deal for you!

    Safe data & compute hosting; Not a USofA company, Not hosted in a USofA contaminated datacentre; Apply now for a low low price, you won't believe just how cheap this deal is.

    subject to terms and conditions

    first come first server

    limited time offer

  11. VinceH

    “The Department of Justice does not need to wait for data to come to the United States to examine it,” he explained. “It can force countries to give it your data without disclosing that access to government, or complying with any European law.”

    Did he perhaps mean "It can force American companies operating in other countries to give it your data" ?

  12. Anonymous Coward
    Anonymous Coward

    Fingers crossed

    I never thought I'd be cheering for MS one day!

  13. Anonymous Coward
    Anonymous Coward

    With all the telemetry shit, why is he even bother trying to pretend that privacy is a concern. Add to that that we are foreigners to be harvested at will from the US point of view and it all adds to a big steaming pile of oh just fuck right off.

  14. Anonymous Coward
    Anonymous Coward

    And has always been so since 2001 ...

    Read the 'Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001' commonly known as U.S.A. P.A.T.R.I.O.T.

    It should be no surprise to anyone .. only since the Snowden revelations have US companies had to do something about minimising the commercial blowback.

  15. Tomato42
    Big Brother

    Methinks that this Citizen will have to move a bit more taxable income back to the Republic before his case will be heard...

    well, at least they have a chance, unlike us, little folk

  16. Jeroen Braamhaar

    Erhm .....

    This from a company that actively slurps user data without explanation, pushes "upgrades" people didn't ask for or want, and proactively works with 'hardware partners' to eliminate competition or people using previous versions.

    Yeah right.

  17. allthecoolshortnamesweretaken

    Truely, we live in interesting times.

  18. Steven Roper

    Pot, meet Kettle

    Microsoft have some fucking face getting stuck into the US government considering their recent propensity to slurp every possible byte of data they can get their claws on from our computers!

    1. Vic

      Re: Pot, meet Kettle

      Microsoft have some fucking face

      I don't care.

      At least they are doing the right thing here, whatever they might be doing elsewhere, and whatever their reasons.

      Vic.

  19. Anonymous Coward
    Anonymous Coward

    I never thought I'd cheer MS!

  20. Anonymous Coward
    Anonymous Coward

    Off topic - sort of - but this image encouraged me to play Spy Vs Spy on my Spectrum emulator again. Great game!

  21. Intractable Potsherd Silver badge

    Very important case

    There are a lot of people who should be aware of this case that have no idea about it. The impact on e.g. Safe Harbo(u)r is potentially huge. We are years from the end of it - whoever loses this round is going to appeal it to the US Supreme Court - and it is all but impossible to negotiate new rules when there is effectively an interim decision. This will mean that data controllers will *have* to keep up to date if they are to ensure that they comply with the law.

    One of the biggest questions about this situation is "Will any US court specifically state that the USA *does* have limitations to its territory?" At the moment, it seems unlikely*. One of the follow-on questions from that is very big - "What will other countries do if it is decided that the USA does not have any boundaries?"

    Popcorn futures should be high at the moment.

    * Money and the ability covert pressure on the judges tend towards the government/TLAs (which may be different things, of course) getting their own way.

    1. Vic

      Re: Very important case

      The impact on e.g. Safe Harbo(u)r is potentially huge

      ITYM "devastating".

      If Microsoft loses this case, there can be no "Safe Harbour"; all data held by American companies is outwith the protection required by European Law, and thus it likely[1] becomes unlawful to use any company to hold European data.

      This is going to run for some time, because someone is going to have to eat a significant portion of humble pie for it to be over...

      Vic.

      [1] "Likely" as some data will be permissibly held with informed consent form the subject. But there's not going to be a whole lot of that...

      1. Doctor Syntax Silver badge

        Re: Very important case

        'If Microsoft loses this case, there can be no "Safe Harbour"; all data held by American companies is outwith the protection required by European Law'

        It's more subtle than that. The article makes reference to the trustee model that MS are exploring with Deutsche Telekom. Essentially it's possible to set up an arrangement where the US corp doesn't actually get access to the data. Access is controlled by an EU company with wholly EU ownership (not an EU subsidiary of the US corp) under a contract governed by the law of an EU country. The contract would need to exclude any rights of the US corp to demand access.

        1. Vic

          Re: Very important case

          the US corp doesn't actually get access to the data

          Yes, exactly - there is no Safe Harbour, and the only way to stay within EU law is to ensure that American companies don't get your data, even if they get your money.

          MS has to win its case for this to be different. I hope they do.

          Vic.

  22. Wolfclaw

    If Microsoft win, US Gov will ask UK Gov to ask GCHQ to do the spying and then pass the blame to UK Gov if it all goes pear shaped !

    1. Ken 16 Silver badge
      Paris Hilton

      And how do they get legal access to a data centre in Ireland?

    2. GrumpyOldBloke

      Yup, extraordinary rendition all over again. Your data will be grabbed and transported to a lawless country where there is no expectations of justice or privacy, like the UK or Oz. If after water boarding the signed confession is left just a little too close to the window and the US get a peek then there is always the bad apples excuse.

  23. John Smith 19 Gold badge
    Unhappy

    Putting a muzzle on the US government

    Interesting idea.

  24. Sir Runcible Spoon
    FAIL

    Sir

    "The government can do so because it recognises no territorial limits to US power in its laws: everywhere in the world is the United States."

    Well that's just fine. The problem only occurs when other countries accept this assertion.

    1. Paul Smith

      Re: Sir

      Not quite. MS as an American Company is being forced into a choice of breaking Irish and European law or breaking American law. Either way, it faces hefty penalties so while I laud their attempt, I also recognise that it is in their own self interests to get this sorted.

  25. Pascal Monett Silver badge

    Well whaddya know ? MS fighting the good fight for once.

    "Microsoft president and lead counsel Brad Smith"

    Good on this guy for putting the US government up against the wall on this. The US may consider that its laws are valid world-wide, but my personal data says stuff that. That said, I don't think for a second that he is doing so out of the goodness of his heart. Besides, he's a lawyer, so he doesn't have one.

    Now, Mr. Smith, perhaps you could multitask and get Nadella up against the wall on the unending Windows 1 0 pushing that is reaching hysterical levels in the methods employed ?

    Before we get jackbooted MS enforcers entering our homes and forcing every computer to run the only Microsoft-compliant OS version, preferably.

  26. kmac499

    Extra Territorial Law

    "The government can do so because it recognises no territorial limits to US power in its laws: everywhere in the world is the United States."

    In principle this seems daft, especially when it includes things like the US IRS charging Boris Johnson capital gains tax on his London House Sale. (Boris is\was a dual national).

    But the UK has a degree of this extra territorial law with our anti bribery\corruption laws.

    One obvious solution for the US, is to ban it's companies from operating in countries which don't accept US the extra-territorial point of view.

  27. Anonymous Coward
    Anonymous Coward

    Is this the first salvo in the establishment of corporations extraterritoriality?

  28. Luke Worm

    TTIP

    To further enforce this "everywhere in the world is the United States", Europe, as well as countries around the Pacific, will get dictated this TTIP agreement. Under the banners of "free trade" and "economic growth".

    https://en.wikipedia.org/wiki/Transatlantic_Trade_and_Investment_Partnership

    The puppets in Brussels are of course following uncle Joe without much questioning.

  29. theOtherJT

    Picking their principles

    I'm very happy Microsoft are standing up and saying "No" to what are on the face requests of decidedly iffy legal standing to hand over data about non-US citizens held on non-US soil. On the other hand their stance with the Win10 data collection has been... less principled... to say the least.

    One has to wonder why it is they've taken a stand on this particular issue. They obviously don't care about the sanctity of their users privacy or they wouldn't be so keen to collect so much data on them, and that being the case they must be doing this for other reasons. After all, no company - especially one as large as Microsoft - does anything that it doesn't expect to benefit from in some form or another. If this isn't about protecting our data from unwanted scrutiny, then what data is this about?

    I'm just waiting for the other shoe to drop on this one.

    1. Doctor Syntax Silver badge

      Re: Picking their principles

      "One has to wonder why it is they've taken a stand on this particular issue."

      That's an easy one. They want to be a big cloud player. Denial of access to the US govt. is going to be an item on any potential non-US customer's checklit.

  30. Asterix the Gaul

    The U.S goverment is the most arrogant on the planet,bearing in mind that 'ignorance' is the twin of arrogance.

    It thinks that it has territorial sovereignity over the whole universe,just how ignorant is that?

    Microsoft is right to challenge them,more the pity that it has taken so long to do so,Facebook,Google & others should join that challenge as it's in their interest to do so.

  31. Asterix the Gaul

    TTIP is just a device to ensnare the whole of europe within the American Capitalist hegemony.

    Anyone with a scintilla of thought should oppose this scheme with everything they have,otherwise it will bring europe into it's next war eventually.

    Live on your knees or die on your feet,the choice is yours,a deal with PUTIN is preferable to this dose of ricin.

    1. Kurt Meyer
      WTF?

      @Asterix the Gaul

      Liberty loving, law abiding Vlad?

      Some choice.

  32. shovelDriver

    "The government can do so because it recognises no territorial limits to US power in its laws: everywhere in the world is the United States."

    There is national law, state law, county and city law, school district law, and international law. Within the boundaries of the united States, and applicable to all American citizens regardless of where they are, there is the Law with which all others must comply, the Law Of The Land, the U.S. Constitution. Which specifically states that States and citizens retain ALL Rights and ALL authorities except those specifically delegated in the written words of The Law. Interpretations by Congress and the COurt which fail to comply with the written delegations of authority laid out in The Law are violations of The Law.

    Then we have the fact that U.S. law cannot, by definition, apply to other countries, except as specified under treaties and Status of Forces agreements. Obviously, else why do we need such treaties and agreements?

    The logical conclusion is that any attempt by the U.S. to apply its' law to other nations is a criminal act.

    But then, the largest criminal organization has always been a government, and the largest criminal gang is always a government's enforcers.

    Q.E.D., resistance against such criminal acts is a valid use of the Right of Self-Defense, and as we should all know by now, the best defense is a good offense. Remember, even the US Gov't has said that "terrorists" are just "freedom fighters" by another name. It's only motivation that makes a difference.

    So if your government keeps encouraging you to stand up for freedom . . .; well then, remember who the enemy is.

  33. Lapun Mankimasta Bronze badge

    First Datum: Customers'data

    What I want Microsoft to do is establish as a general rule that any given company does not and never can "öwn" its customers' data. It is only and can only be, a custodian of that data, and to the degree and extent that it makes a profit from those customers' data, that is a liability that is unregistered - that is, those customers own the company to that degree and to that extent.

    This can be established by answering the simple question: what does a finance company do for example, when you apply for finance? Require you to update them on changes of address. And what would happen if a company didn't bother with following its customers like that, and instead made up its own data? What do we call a company that is busy making up its own data from whole cloth?

    And in consequence, the only situations where it is liable to pass that data on, are matters of public safety and criminal connection. The rest of it, the government must apply to each and every individual concerned using the time-tested special warrant method delivered by hand to said individual that has worked so well, for access to that data.

  34. shovelDriver

    What Price Lawful Boundaries

    The USG wants everyone - and every country - to accept that its' directives apply everywhere and everywhen. They want us all to believe that US means "all of US".

    The USG is wrong. Not mistaken; wrong.

    U.S. Law, created by the U.S. Congress, MUST comply with the limitations and restrictions placed on government by the US Constitution. Laws which contravene those limits, which assume authority not specifically granted (in writing) by the U.S. "Law Of The Land" are null and void and of no force, and consequently, any agent who attempts to enforce such "laws" is committing a criminal act. (Fact: the U.S. Court has ruled that members fo law enforcement are "professionals" and as such, are deemed to know the laws under which they operate. They cannot claim ignorance of The Law.)

    The point: U.S. Law cannot and does not - lawfully, at least, apply outside the boundaries of the nation. Unless there is a constitutionally-valid treaty making specific defined-in-writing statutes lawful. Why else do you think treaties exist? Rules & regulations just don't cut it, at least accordng to the plain-language words of the "Supreme Law".

    Q.E.D. many acts of the USG are unlawful, criminal, and so too are the actions of its' agents.

    Of course, lawyers will say otherwise, but then, lawyers are not exactly disinterested parties wehen it comes to maintaining their icome, salaries, perks, and power-base.

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