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Where's the data?

Evan Schuman | March 18, 2015
The U.S. government wants access to an alleged drug dealer’s emails, but Microsoft says, sorry, they’re in Ireland and out of bounds. This is what happens when we apply non-digital rules to digital situations.

Microsoft then made its point: "The letters the reporter placed in a safe deposit box in Manhattan are her private correspondence, not the bank's business records. The seizure of that private correspondence pursuant to a warrant is a law enforcement seizure by a foreign government, executed in the United States, even if it is affected by a private party whom the government has conscripted to act on its behalf."

Jennifer Daskal, a former counsel at the U.S. Department of Justice and lawyer for Human Rights Watch who is now a law professor at the American University in Washington, D.C., has been writing extensively about this case.

"We now live in a world in which most of us trust just about all of our private communications and other documents to third parties for transit or storage. The implication that all such data could be obtained by administrative subpoena as the government suggests -- is troubling, to say the least," Daskal wrote. "More importantly, the government fails to acknowledge that even if there is not a direct conflict of laws, its approach violates the long-standing presumption against unilateral law enforcement actions in another state's territory. Of particular concern, it opens the door for other nations compelling ISPs to turn over data located in the United States, including that of U.S. citizens, possibly for nefarious purposes, and without regard to the dictates of the (Stored Communications Act). As the government notes, the UK has already passed such legislation and others will undoubtedly follow suit."

Daskal's point is on target. Consider diplomatic immunity. The only reason we give a get-out-of-jail-free card to diplomats is so that other governments will reciprocate. Otherwise, having diplomats in certain not-so-friendly countries would be impossible.

Let's bring this all back to email and any other form of digital data that IT has to handle. Although it's certainly the easiest path for the government to just slap a legal demand on a U.S. company, the big concern must be global precedent. Everyone in this case is choosing the most palatable characters for their arguments. Justice chose to take an effort involving an accused drug dealer as its test case. Microsoft couched its counterargument in terms of a U.S. journalist.

Do people with a Gmail account even know what country their data is housed in? Should they care? That thinking favors the government's argument, that Google email is seen by customers as being from Google, a U.S. company, just as MSN is seen as Microsoft.

Courts -- and legislators and the White House -- need to take these issues very seriously. The global backlash could have a wildly unforeseen impact.

 

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