Digital Chaos

In law school, I remember several professors repeatedly saying, “Good cases often make bad law.” For example, assume some nasty cartels with drug trafficking on their agenda, are building a rather complete and possibly very effective new strategy significantly upping their ability to penetrate our border. Their electronic communications, focusing on those that were made and received entirely outside of the U.S., might provide valuable insight to DEA officers on breaking that strategy and stopping the influx of illicit drugs. We’re not talking marijuana! One catch, the communications – whichmight contain those valuable insights – are not in the United States. They are located in file servers in Ireland, but federal officers have issued a warrant in the United States to a U.S. company with a subsidiary that might store that information.

Why not? The information could be relevant, a judge is actually issuing a warrant and there is a U.S. connection. But there are consequences. First, if you are an overseas company with no nexus to the United States and you are looking for a company to handle your electronic communications, file storage, information technology, etc., etc., you might just think twice about engaging a U.S.-based provider (or one with U.S.-based affiliates), since that choice would seem to open you up to “whatever those crazy American government agencies” might want to do with your information. Better to go to a competitor, without links to the U.S., without facing the risks of what many perceive as an over-reaching, bullying United States government.

As you may have noticed, the European Union is intensely more focused on individual privacy than is the United States. European leaders have railed against NSA snooping on their electronic communications. Laws in Europe are tough on privacy intrusion.

Second, how do you think the governments where such facilities are located are going to react when foreign governments completely sidestep their laws and privacy protections by finding an excuse to penetrate local operations with court orders far, far from their borders? Why, they may well ask, didn’t the relevant prosecutors ask the relevant local courts for access? And it’s not exactly like Ireland is a mega-corrupt nation where judges are for sale.

The real case, a drug-trafficking investigation, was decided on July 31^st in a federal district court in New York with a holding that Microsoft could indeed be forced under warrant to hand over information stored in their subsidiary’s Irish file server. Sensing the international and constitutional ramifications, the trial court stayed enforcement of the order pending appeal.

“‘The ruling could lead to chaos, where other governments demanding reciprocal treatment insist that their warrants compel U.S. providers to turn over content that they store in the United States,’ said Gregory Nojeim, senior counsel for the Center for Democracy and Technology, which supports Microsoft’s position…

“The court’s ruling is also likely to exacerbate tensions between U.S. tech companies and the government created in the wake of disclosures by former National Security Agency contractor Edward Snowden over U.S. surveillance, analysts said.

“‘We’re extremely disappointed with today’s U.S. District court decision in favor of the U.S. government’s extraterritorial search warrant,’ said Wayne Watts, AT&T general counsel. ‘We will strongly support Microsoft’s pursuit of a stay and subsequently a successful appeal of this decision.’…

“The judge’s ruling probably will prompt more expressions of outrage from foreign officials, especially in the European Union, about the potential for intrusion into their sovereignty. On June 24, the European Commissioner for Justice, Viviane Reding, voiced concern that the magistrate judge’s opinion in the case ‘may be in breach of international law’ and ‘may impede’ European citizens’ privacy.” Washington Post, July 31^st. As I said, good cases often make bad law. And exactly what would happen if the Irish government issued an order denying federal prosecutors access they have secured, in that NY federal court ruling, without going through Irish courts?

 Peter Dekom, and it is always difficult when one country wishes to impose its values and cultural imperatives on another country’s assets and citizens.