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Microsoft Government Privacy United States

Supreme Court Wrestles With Microsoft Data Privacy Fight (reuters.com) 163

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.
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Supreme Court Wrestles With Microsoft Data Privacy Fight

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  • 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.
  • by Anonymous Coward on Tuesday February 27, 2018 @03:38PM (#56195935)

    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.

    • by green1 ( 322787 ) on Tuesday February 27, 2018 @04:12PM (#56196169)

      Sorry, America, but you can't have it both ways.

      Unfortunately for the entire world, America has always been able to do so in the past, so they see no reason not to continue doing so.

      American law applies worldwide, all other laws stop at the US border. The only real question is, how far will the rest of the world let that go before they start to push back? so far most of the rest of the world tends to just roll over and let the US have their way. I don't anticipate that to continue forever though.

      • by BlueStrat ( 756137 ) on Tuesday February 27, 2018 @06:03PM (#56196883)

        Sorry, America, but you can't have it both ways.

        Unfortunately for the entire world, America has always been able to do so in the past, so they see no reason not to continue doing so.

        American law applies worldwide, all other laws stop at the US border. The only real question is, how far will the rest of the world let that go before they start to push back? so far most of the rest of the world tends to just roll over and let the US have their way. I don't anticipate that to continue forever though.

        What would be interesting is if the court orders MS-US to comply and the Irish government sends in police and seizes control of MS-IRL's severs, data-storage, and facilities.

        Or, less dramatically, the Irish government simply says they will arrest and prosecute anyone at MS-IRL who attempts to comply with the illegal US order and seek to extradite MS-US persons who issue such an illegal order and the judge(s) that created the illegal order to likewise prosecute them as well.

        This could get quite popcorn-worthy.

        Strat

        • by green1 ( 322787 )

          Except we all know that won't happen.

          The most likely outcome is that MS-US simply takes the data, which is likely accessible to them remotely anyway, and nobody from either country gets in any trouble. Some people in Ireland make a big stink about it, but no policies ever get changed, and it's forgotten about before the next sitting of the EU parliament.

          Conversely of course, if the roles were reversed, the data would never leave the US, and anyone in Ireland who tried would be extradited to the USA to face

          • by Cederic ( 9623 )

            which is likely accessible to them remotely anyway

            Only if the employees in Ireland are horrifically negligent.

            They've had years to assure that data can't be accessed from the US, and every reason to do so.

            • by green1 ( 322787 )

              Cloud storage isn't so useful when it's not accessible remotely....
              If they didn't want anyone to access the data, they'd have been better off simply deleting it. (And before we talk about obstruction of justice for doing so, remember that the argument is that they aren't subject to US law anyway, so there's no difference here between refusing to deliver it, and deleting it entirely)

    • America already has it both ways. Virtually alone in the world, the USA demands its citizens submit tax returns even when they are resident and employed overseas. It further demands (using what can only be described as blackmail) records on bank accounts held by American individuals overseas, including people resident there (FATCA).
      So if an American moves to - say - an African country, and works there, earning a small amount of money which is not taxed, Uncle Sam still wants to know about it.
      Virtually no ot

      • by Ihlosi ( 895663 )
        Basically normal countries accept that you should be taxed where you earn the money.

        The normal way of taxation is by place of residence, afaik.

  • Consider the physical space, if a bank has headquarters in the USA would that mean the US government is entitled to access a safety deposit box in a foreign country?

    If they are granted access then this is effectively the end of the use of US based tech companies for cloud services by a wide variety of industries (e.g. government, medical, legal). One also wonders whether the access would even be illegal in the foreign jurisdiction.

    • With the companies all having goofy headquarters for tax reasons, what happens when MS Ireland tells MS US "No" when they ask for the email or whatever? Does the US just freeze MS Ireland CEO's assets until he complies or something?
      • That still won't resolve the risk of jail in Ireland for disregarding Irish law.

      • The same thing that happens when any subordinate company employee refuses to comply with a court order -- the court tells the company to effect the order.

        In this case, the court would order MS US to give effect to the order, and MS US would either have to order/discipline/fire people at MS Ireland until they complied, or else be in noncompliance with the court's order.

        The courts certainly aren't going to dick around figuring out which subordinate where needs to do what. Compliance is the company's problem.

        • by mysidia ( 191772 )

          In this case, the court would order MS US to give effect to the order, and MS US would either have to order/discipline/fire people at MS Ireland until they complied

          But since MS US does not have any legal authority over MS Ireland; it's a moot point; Microsoft US has no capability to "order", "discipline", or "fire people" in the other business unit.

          • If, as you claim, they are independent companies and no one at MS US exercises supervisory or contractual authority over MS Ireland, then MS US can truthfully go to the court and say they have no means to comply with the order.

            If, on the other hand, MS US, either through direct control or via contractual obligations, directs the actions of MS Ireland, then MS US would be required to comply with the order as they have the means to do so.

          • If MS US had no legal authority over MS Ireland, then this entire court case would have been over and dusted a decade ago - a company with no ownership rights, authority or interest in another company cannot be forced to make that other company do anything.

            In this case, MS US owns MS Ireland. Legal authority exists as part of those ownership rights.

            • by mysidia ( 191772 )

              In this case, MS US owns MS Ireland. Legal authority exists as part of those ownership rights.

              Perhaps MS US owns MS Ireland, BUT Legal authority does not extend into breaking the law.

              If it would be a violation of the laws in Ireland for MS Ireland to transfer the data outside of Ireland, then
              not even the owner of MS Ireland has the legal authority to do so, even if they might have means of physically coercing MS Ireland to break the law; doing so would by definition be an unlawful attempt to exerc

        • And if that breaks Irish law?

          • by guruevi ( 827432 )

            Then someone in Ireland has to file suit and they can come up with damages. Given the deed will already have been done, the only thing that can be done is restorative at that point.

        • But in this case, for tax purposes, the US entity is generally the subordinate one, yes?
    • by jd ( 1658 )

      In the example you gave, usually extra-territorial is off-limits, except for crimes on the high seas, which can be prosecuted by the owning state, the state of arrival or the states of the individuals concerned.

      The LIBOR scandal was partly uncovered by somewhat forceful access to Swiss bank accounts by the British, albeit with begrudging Swiss approval. Eventually. The Panama Papers and Paradise Papers revealed further abuses that really should have been uncovered a lot sooner and which can't be effectively

      • by Cederic ( 9623 )

        the reverse ruling makes all corporations de-facto embassies

        No, it does not. Embassies are not companies and companies are not embassies. A US ruling (or its reverse) does not change this.

        Even if MS Ireland are subject to US law (which is debatable, even if the US Supreme Court rules in favour of the government) they very definitely remain subject to Irish law. That may leave them forced to break a law, but sure as fuck doesn't give them immunity if they break the law in Ireland.

    • The US already requires foreign banks with bank accounts owned by US citizens to pass data to the IRS on that bank accounts usage. This has been the case for many years.

      So its not absurd, and plenty of precedent already exists.

      • by Luthair ( 847766 )
        Its actually only a few of years, and the part that you're missing is it required the US negotiate treaties.
      • by jabuzz ( 182671 )

        They do that by saying if you as a bank wish to interact with the US banking system you must pass data to the IRS on US citizen's. So if as a bank I have no wish to interact with the US banking system then I can tell the US government to go pound sand and there is nothing the US government can do about it.

        Of course this is quite limiting for a large bank so they generally comply. However I would imagine that some of the smaller building societies in the UK for example don't do international banking with the

        • by Ihlosi ( 895663 )
          They do that by saying if you as a bank wish to interact with the US banking system you must pass data to the IRS on US citizen's. So if as a bank I have no wish to interact with the US banking system then I can tell the US government to go pound sand and there is nothing the US government can do about it.

          Yes it can. Simply make a bilateral treaty with the other country, and the requirement to pass US person financial information to the IRS can be passed into law in the other country.

          The other country a

  • Wrong sides? (Score:4, Interesting)

    by Nemyst ( 1383049 ) on Tuesday February 27, 2018 @04:17PM (#56196197) Homepage
    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.
    • by guruevi ( 827432 )

      The judiciary is not supposed to be in favor of anything, they're supposed to interpret the law as they are written. In that context, "conservative" judges typically seek to abide by the letter of the law and "liberal" judges seek to reinterpret and make up new laws.

  • If the Supreme Court rules that data follows the laws of the nation that it is in, then the EU's data protection laws and right to forget automatically apply to all data in the EU even if held by a US company. I doubt the court will consider that, but that is simply a matter of fact.

    If the Supreme Court rules that data follows the laws of the nation of the holding company, then European-based companies in the US automatically follow those aforementioned EU laws. The fact that they're in the US would be inci

    • by Solandri ( 704621 ) on Tuesday February 27, 2018 @05:15PM (#56196623)
      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
    • 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 co
      • by AHuxley ( 892839 )
        The US gov goes full "Letter of marque" on Ireland? https://en.wikipedia.org/wiki/... [wikipedia.org]
        Other nations will sit up and take note of what US brands and the US gov will do.
        That allowing any US brand in opens their legal system up to many different US laws.

        The US can go back to its past and enforce a trade deal and laws onto the EU?
        United States expedition to Korea https://en.wikipedia.org/wiki/... [wikipedia.org]
        Go full Perry Expedition into Ireland https://en.wikipedia.org/wiki/... [wikipedia.org] ?
        • So, now you are concluding that if the Supreme Court rules that U.S. laws apply to data which Microsoft stores on servers in Ireland that the President will start a war over enforcing those laws. You really need to spend some time studying the separation of powers as laid out in the U.S. Constitution. The Supreme Court is not nearly as powerful (or, at least not intended to be) under the U.S. Constitution as you seem to imagine.

          What you are saying is that it would be a bad idea for U.S. laws to apply to
    • First, it's Data.

      Then, it's monies/commodities.

      All in all, the owners' rights should also supersede the rights of those holding the items for another, in spite of where those items are being held.

      After all, burying monies to avoid taxation is tax evasion, and inherently illegal. Hiding incriminating data, or simply holding data that is of illegal content or for illegal use should follow in its legal state, regardless of location.

      I don't see this ultimately going anywhere, as this would open the floodgates o

  • The conversation keeps revolving around where the company is located and where the server is located. No decision based on those criteria will ever be consistent. Perhaps it makes more sense to assign jurisdiction not based on where the data is held, or where the company headquarters resides, but based on where the individual resides. In that interpretation, the US government could get a warrant to obtain files on American citizens, but not on Irish citizens. This resolves some of the scenarios where so

  • That's fine but it has to spark and evolve there, not adapt from richer climes.

    Also 1/100th the atmosphere may be livable but is another monkey wrench the cold desert doesn't come close to duplicating.

    Also this claim has been made for extremophiles before, notably antarctic lichen.

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