The Stack Archive

Jurisidiction: The long arm of the law gets very long indeed

Mon 11 Aug 2014

Hammer and gavel

Stack-PaulMiller2[1]A number of recent cases, regarding data stored in foreign servers, have seen US courts attempting to assert rulings outside of jurisdiction. Paul Miller asks whether this is just one step too far?

As we look back on the year since Edward Snowden’s first revelations appeared in the world’s media, far less has changed than doom mongers, privacy obsessives or civil libertarians hoped and predicted.

Companies and individuals that previously embraced the cloud more or less continue to do so. Companies and individuals that previously avoided the cloud more or less continue to do so, but now they have an excuse with which to justify their decision.

All of the sensible advice and good practice around encryption, backup, and not logging into your bank from Starbucks remains just as valid as it was before. Finally, though, a few more of us are willing to endure the ‘inconvenience’ of VPNs and sensible password behaviour than was previously the case. Some have even realised that neither is actually as inconvenient as we’d allowed ourselves to believe.

But, in the midst of this, the US Government’s apparently low opinion of foreign rights and jurisdictions continues unchecked, and this has the potential to do far more lasting harm than anything Snowden has revealed to us.

Take, for example, an ongoing dispute between Microsoft (confusingly, for some, one of the Good Guys in this particular squabble) and a New York court.

The US Government has served Microsoft with a search warrant. Among other things, this search warrant requires that Microsoft provide access to some data stored in one of its data centres. Microsoft is, of course, a US company. But the data in this particular case is stored in a Microsoft data centre outside the US. There are plenty of reasons why any Government might want access to data stored overseas. The data may belong to a US national, or it may be data related to a crime that was perpetrated on US soil or against US interests. For any or all of those reasons, the US Government might be quite justified in trying to access this data. It might ask nicely, or it might invoke existing treaties or relationships to get at the data. If all else failed, it might invoke the full weight of international law, and the World Trade Organization, and even sanctions to make the country in which the data is hidden see sense.

And this international pariah state, with a legal system so messed up that the US feels compelled to step in to provide a bit of rule of law? Is it Iran, with reasons of its own not to bow to US demands? Is it Iraq, with rather more important things to worry about at the moment?

No. It’s Ireland. A country with a perfectly reasonable legal system of its own. A country that tends to adopt the stream of modern, globalised, trade-friendly rules and regulations emanating from Brussels. A country with which the US already has a bilateral legal assistance treaty. In other words, a country that’s friendly to the US, and a country with a legal system through which the US could work to make a legal case for accessing data. But that, according to the American judge ruling on this case, would be “burdensome.” Microsoft should just open up and hand over the data.

Burdensome. So following due process is too much like hard work. Let’s just bypass all the tedious forms, and grab what we want. I’m sorry, your judge-ship, but I wasn’t aware that proper legal systems were constructed on the basis that we just set them aside when it all becomes a bit tricky. The law is tricky. The law is complex. The law requires flexibility and interpretation and common sense. It’s probably meant to be burdensome. But the value of upholding it far outweighs the cost of being ‘burdened’ by it.
Spies spy. Snoops snoop. Spooks creep around in places they possibly shouldn’t. We know this. When they’re our spies, snoops and spooks, we even (mostly) accept it as one of those things that justifiably sits outside the usual set of behaviours we expect or condone.

But for a Government to – apparently – believe that its laws, its norms, its interests override the laws, norms and interests of every other country on the planet? Even inside the borders of those other countries? That, surely, is a step too far.


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