Linked by Thom Holwerda on Thu 1st Mar 2018 01:00 UTC, submitted by Alfman
Legal

Should the United States government be able to conduct a search of your emails if they are stored on a server in another country, or does the government’s right to examine digital evidence stop at the border?

That is a central question in United States v. Microsoft, a case scheduled to be argued on Tuesday before the Supreme Court.

Both sides in the case have legitimate concerns. If the court sides with Microsoft and declines to allow searches for data stored in another country, the government will be hampered in investigating crimes like terrorism, child pornography and fraud.

If the court sides with the government and rules that it may demand data stored overseas by American companies, those companies will find it much harder to do business abroad. This is because many foreigners fear that United States warrants authorizing such searches will disregard privacy protections afforded by their country. The government of Germany, a country with stringent privacy laws, has already indicated it will not use any American company for its data services if the court decides to allow searches.

At this point, I feel like it's just safer to assume all data stored online or sent from one device to the next is essentially not secure in the sense that no one will be able to read if they really wanted to. It's not the way it should be, but I don't think there's a whole lot we can do about it - regardless of the outcome of legal cases such as this one.

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Sticky situation
by jessesmith on Thu 1st Mar 2018 02:18 UTC
jessesmith
Member since:
2010-03-11

I think this is going to be a sticky situation, legally, no matter which way it goes.

If the courts decide Microsoft must hand over their documents because they are, after all, an American company regardless of where the data is stored, then that's going to signal to the world that American companies are not safe to deal with. No one is going to want to risk doing business with a company with offices in the USA if their files must be handed over, regardless of local law.

On the other hand, if the court sides with Microsoft then it signals that American companies can ignore USA laws if they just move their data/processes/dealings to another country. It'll be the tax evasion issue all over again, this time with memos, e-mails and so on.

Either way, it's not going to be pretty, especially for American citizens. They're likely to lose jobs regardless of who wins because either data or jobs will likely be moved overseas.

Personally, I suspect the court is going to side with the DoJ. If they let American companies dodge investigation by simply moving where deals are made and/or documents are stored, then they've opened a massive loophole for all companies to open offices abroad. The ruling will open up a new legal battle between Microsoft and Ireland, but the American courts and DoJ will be fine with letting Microsoft deal with the fallout from that.

Edited 2018-03-01 02:20 UTC

Reply Score: 4

RE: Sticky situation
by Alfman on Thu 1st Mar 2018 05:14 in reply to "Sticky situation"
Alfman Member since:
2011-01-28

jessesmith,

If the courts decide Microsoft must hand over their documents because they are, after all, an American company regardless of where the data is stored, then that's going to signal to the world that American companies are not safe to deal with. No one is going to want to risk doing business with a company with offices in the USA if their files must be handed over, regardless of local law.


On the other hand, if the court sides with Microsoft then it signals that American companies can ignore USA laws if they just move their data/processes/dealings to another country. It'll be the tax evasion issue all over again, this time with memos, e-mails and so on.


The way I see it is that the foreign branches are not under any obligation to comply with US law. Without jurisdiction, nor cooperation from the local government, US courts have no jurisdiction over them. The caveat, which is admittedly pretty big, is that the US government could hold the US corporate offices and executives in contempt if the foreign offices refuse to comply. In other words, the foreign branches technically have a legal right to ignore US rulings, but depending on the outcome of this case, US persons could be punished for it.


It's an interesting case and I don't know which way they'll rule, but another point to add to the mix is that the foreign branches are technically subject to the foreign laws, which could theoretically impose consumer privacy laws that contradict the US requests.

Personally I think the best solution would be to use diplomatic relations to obtain a legal warrant in the foreign country. While the US government may not like that they have to ask rather than demand, I think it's the only fair thing to do since the US isn't entitled to make demands in other countries.

Some people might disagree with this conclusion, but to you I ask this: if we allow US rulings to carry into other countries, then does that give other governments the same rights in the US? Would you be ok if a foreign court could make a ruling that bypasses the privacy rights of US persons because they passed through foreign owned infrastructure? I think the supreme court has to consider this as a two edged sword.

Reply Parent Score: 7

RE[2]: Sticky situation
by jessesmith on Thu 1st Mar 2018 13:08 in reply to "RE: Sticky situation"
jessesmith Member since:
2010-03-11

I would say that the reverse situation would make sense. If an Irish company, for example, were to open a new office in the USA, then Irish courts would be able to demand documents be handed over from the American branch.

In short, I think companies need to follow the laws of each country they set up shop in. If they face issues (like contempt of court) from contradicting laws then that is part of the cost of doing business.

Reply Parent Score: 1

RE: Sticky situation
by ilovebeer on Thu 1st Mar 2018 15:47 in reply to "Sticky situation"
ilovebeer Member since:
2011-08-08

Tax evasion and the question of legality over demanding materials stored outside US borders don't equate in any way.

The idea that US law has or should have jurisdiction in other countries is absurd and for the Supreme Court to rule otherwise would be incredibly reckless, and pointless. No country is going to willingly agree US law supercedes their own. If a US agency wants materials stored in foreign lands, it will have to use either diplomacy to obtain the proper subpoena or warranty from the target country, or just take the materials illegally, both of which is how it works now. US companies don't get to just open shop elsewhere, they have to license themselves as businesses within their host country and are subject to all the local laws and regulations. They may be owned by a US entity but that doesn't grant any special privilege to the US govt.

Reply Parent Score: 4

RE[2]: Sticky situation
by shotsman on Fri 2nd Mar 2018 07:02 in reply to "RE: Sticky situation"
shotsman Member since:
2005-07-22

This could get really nasty.
If Company M has data in Country I and Country U (where M is legally incorporated) wants that data which is against the laws of Country I there is ample justification for Country I taking over the assets of M to protect its own citizens. The leader of U will throw a hissy fit and retaliate.

And so begins a trade war.
Probably going to happen over U's latest issue with Steel and Aluminium etc.

Laws of unintended consequences are just not on the radar of Politicians. To them and especially in U, it is all about getting re-elected or rather getting the vast funds needed to bribe the electorate into voting for you again.

Reply Parent Score: 5