Legal Issues

by Glyn Moody


Filed Under:
doj, ireland, jurisdictions, subpoenas, warrants

Companies:
microsoft



Ireland Asks EU To Support Microsoft In Legal Battle Involving Competing Jurisdictions

from the this-could-get-messy dept

Techdirt has been following the extremely important case where a US magistrate judge ruled that Microsoft had to comply with a warrant asking for data held on servers in Dublin. Clearly, if this stands, it will have big implications for cloud computing -- and a massive negative impact on US businesses trying to sell such services around the world. For that reason, Microsoft has been fighting back in the courts, so far unsuccessfully.

Now there's been an interesting development on the other side of the Atlantic, where Ireland's Minister for European Affairs and Data Protection has written to the European Commission formally requesting it to make a submission:
A case involving Microsoft that is currently before the US courts has raised important issues between the respective legal regimes in the European Union and the United States, particularly in relation to the protection of personal data.

The case in question has given rise to a degree of legal uncertainty and the outcome could have potentially serious implications for data protection in the EU.

By seeking direct access to data held in the EU through the US judicial system, existing legal mechanisms for mutual assistance between jurisdictions may be being effectively bypassed. There are fundamental issues at stake here as regards the protection of personal data that is held within the European Union.
"Existing legal mechanisms" presumably means the Mutual Legal Assistance Treaty that would allow the US to request the data it wants from the Irish government. The "fundamental issues at stake" refer to the fact that by trying to take a more direct route, without involving the Irish government, the US authorities are likely to fall foul of European data protection laws, which do not allow personal data to be handed over in this way. The Irish minister is clearly asking the European Commission to support Microsoft in its fight against the US court's decision:
I urge the Commission to consider the arguments that Microsoft are making with respect to this case.
That's an indication that the Irish government -- and doubtless those elsewhere in the EU -- really want Microsoft to win. If it doesn't, there is going to be a clash of jurisdictions that could get very messy as both US and EU insist that their laws must take precedence, with serious consequences if they don't....

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  • identicon
    Anonymous Coward, 21 Nov 2014 @ 3:01pm

    And...

    People scoff when idiot college kids say America is a bigger threat than Terrorist?

    Sure they are idiot college kids but it does not make them wrong.

    I am a conservative that believe America is a bigger threat than Terrorism.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 21 Nov 2014 @ 4:00pm

      Re: And...

      Terrorists can kill some people, at times a good number.

      So can cigarettes, drinking, ladders, cars, random chemicals, rain, dogs, household appliances...

      Point is, a whole lot of things can kill you, and the odds that a terrorist will be what ends up doing you in is vastly lower than a whole slew of other, much larger threats.

      A corrupt, power hungry government however, can do a whole lot more than that. They can strip away your rights, take away your freedom, even have you killed, all on accusations and under the lie that their actions are done 'to protect you'.

      In the larger picture, terrorists are barely a blip on the radar when it comes to threats to life and liberty, governments, not so much.

      reply to this | link to this | view in chronology ]

      • icon
        tqk (profile), 22 Nov 2014 @ 11:56am

        Re: Re: And...

        A corrupt, power hungry government however, can do a whole lot more than that. They can strip away your rights, take away your freedom, even have you killed, ...

        Or even worse. I'm thinking of a few people in orange jumpsuits living on an island in the Caribbean whose friends and families eagerly await the release of a certain Senate report.

        By the way, I don't consider Singapore corrupt. They're just way too overbearing for my tastes. They think nothing of stripping away rights and taking away freedom, all for the "greater good." China does too, and I'm not sure I'd define them as corrupt either. They just do it "their way", and they've four thousand years of history to back up their argument. Sucks to be you if you're Chinese and disagree.

        Another thing ... Is there really any other kind of government than "power hungry" ones? Perhaps Switzerland, but that's iffy as well. There's many forms that power can take on, financial being one of them.

        Back to the article we're discussing, I wonder if the data Microsoft's trying to protect was even legally collected in the first place. Whose rules govern collection and retention of customer business data when US enterprises are situated off continent? I'd say European rules, as it's Europeans' data. So why should Microsoft get to win this? When in Rome, ...

        reply to this | link to this | view in chronology ]

        • icon
          tqk (profile), 22 Nov 2014 @ 1:21pm

          Re: Re: Re: And...

          Oops. Please assume I've cuffed myself upside the head. That last line should be, "So why should the US' DoJ get to win this?"

          Add to that I now realize it's email that DoJ is after, not Europeans' personal business data (which may be an irrelevant distinction, I don't know).

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Nov 2014 @ 4:00am

      Re: And...

      And here i thought the education system was failing

      reply to this | link to this | view in chronology ]

      • icon
        tqk (profile), 22 Nov 2014 @ 12:36pm

        Re: Re: And...

        And here i thought the education system was failing

        Well, it is, but what's that got to do with this? Now that you mention it, however, didn't your teachers ever mention you're not supposed to start a sentence with "and"? You're also supposed to conclude sentences with a period (".").

        So, I guess you got something right (education system failing). I'd see if I could get my money back on that education they failed to provide you, but it takes two to learn, and some students are unwilling to participate.
        However, language does evolve, and you're hardly the worst offender, though it is rather criminal to not capitalize the word "I", especially after you've already proved you know where the shift key is by capitalizing "And."

        Perhaps I digress, but it is the weekend, and I enjoy taunting ACs. Petty, I know, but it doesn't take much to amuse me. Carry on. :-)

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Nov 2014 @ 3:37pm

    The DOJ, the biggest bully in the world, always determined to get the outcome it wants by bullying, rather than seeking justice through due process.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Nov 2014 @ 4:18pm

      Re:

      This one may be a huge miscalculation, but not as much by DOJ as a couple of incompetent judges and incompetently written laws. Afaig. jurisdiction is a fundamental matter of balancing interaction between national governments and the idea that Microsoft in Dublin is under US jurisdiction is colliding with that concept. If NSA wins this one, the precedence is essentially a fundamental break with the modern world order, going towards cold war logic of spheres and puppets of the strongest nations militarily.

      Somehow I hope even political highstrong cowards who have given in to the fear of terror (or has an offer they aren't willing to refuse from the beltway complex...) realize the consequences for the stability in the world if such a jurisdictional creep is upheld.

      reply to this | link to this | view in chronology ]

      • icon
        Bergman (profile), 21 Nov 2014 @ 6:25pm

        Re: Re:

        The obvious solution is for an EU court to order Microsoft to hand over data stored in the United States, that the US government considers confidential and sensitive.

        If it's legal for the US to order the release of data in Ireland through a US court, then it's equally legal for an EU court to do so in reverse.

        Congress will break the sound barrier in their efforts to patch the security breach and sovereignty violation.

        reply to this | link to this | view in chronology ]

        • icon
          tqk (profile), 22 Nov 2014 @ 1:37pm

          Re: Re: Re:

          The obvious solution is for an EU court to order Microsoft to hand over data stored in the United States, that the US government considers confidential and sensitive.

          Good one. DoJ should have gone for the (locally stored) off-site backups instead of dragging the Irish into this mess.

          Data. Damn, that's a powerful concept. Do we really know where ours is, or how many copies of it there are, or how many legal jurisdictions get to have a say in what gets done with it?

          If China gets it into its head to pull a Google and screenscrape the whole Internet, will we get any say in the matter? No. I think I'll need to pop some corn kernels for this.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Nov 2014 @ 4:13am

      Re:

      Im sure if you dig down deep enough into the "private" lives of these people, you'd find a THREAT somewhere i.e. if this doesnt happen, then, this, will happen

      Tyranical democracy at its finest, where secrets are kept and select information is NOT nationally/globally BROADCASTED.........hence the illusion of democracy........secrets are kept secret, and the semi dirty laundry is not selectively broadcasted to millions, but out there for a smaller number to actively search for, to wave away accusations of hiding things that WONT get liitle joe killed.....but WOULD kill their positions if the people were aware......

      reply to this | link to this | view in chronology ]

      • icon
        tqk (profile), 22 Nov 2014 @ 2:06pm

        Re: Re:

        ... hence the illusion of democracy ...

        You say that as if it's a bad thing. :-P

        I tend to believe all we've ever had was the illusion of freedom, which in recent times has been provided by democracies. However, it always was just an illusion.

        When you're a sheep encircled by a pack of wolves, it doesn't mean much that they haven't yet killed you. You're still going to be their dinner. It's "just a matter of time." Enjoy what's left of your life while you can, while in abject terror? That's not what I'd be comfortable considering "life" nor "freedom."

        I sense I'm becoming overly morbid with advancing age, but I can (so far :-) live with that. Hopefully, someone can gain from my efforts. I accept it won't be me. I'm just trying to help if I can. My backup plan is along the lines of "3001: A Space Odyssey", where someone in a suitably advanced civilization would be curious enough about something that I wrote that they'd drag me back to life to explain what I meant.

        It might happen. If it doesn't, I'll be dead so I won't care. Win win!

        reply to this | link to this | view in chronology ]

    • icon
      tqk (profile), 22 Nov 2014 @ 12:47pm

      Re:

      The DOJ, the biggest bully in the world, always determined to get the outcome it wants by bullying, rather than seeking justice through due process.

      Are we reading the same story? I agree with your opinion of the US' DoJ, but I think this is about data stored on servers in Europe (assuming Ireland is in Europe, which question I'll leave to the Irish).

      Do you get to take a consular official with you when you travel abroad? Do you immediately hire a local lawyer upon arrival? Microsoft is big enough that it should be expected to be able to handle problems like this without resorting to pleading for mercy from local authorities.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Nov 2014 @ 3:54pm

    Careful what you wish for...

    If the DoJ wishes to argue that it can bypass the law of EU countries and gain access to data held in EU countries without involving their governments, then it will have to accept corresponding treatment from EU (and other) countries.

    Thus if, for example, if the government of China insists that since Microsoft does business there it is subject to their laws AND that those laws have the power to reach into Microsoft servers in the US without the involvement of the US government, the DoJ must not object.

    This Pandora's Box is not one that any government should seek to open. Due process across international boundaries is an enormous pain the ass but it's supposed to be an enormous pain in the ass because "our laws" are not "their laws" for all values of (our, their). Yes, that means that sometimes people get away. Yes, that means that sometimes political considerations determine the outcome. Yes, that means that bureaucracy and delays are involved.

    But removing all of that friction and allowing any government on this planet to assert that data held in other countries is within its grasp without any legal process of any kind in those countries is a horrible idea.

    reply to this | link to this | view in chronology ]

    • icon
      Arthur Moore (profile), 21 Nov 2014 @ 5:48pm

      Re: Careful what you wish for...

      The most likely result is that the EU will prevent US companies from storing private data. AKA removing all US based internet companies from Europe. This would actually be a big win for the EU, since they've been trying to hammer successful American companies for some time now.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 21 Nov 2014 @ 6:22pm

        Re: Re: Careful what you wish for...

        As an added bonus, the inevitable mass lawsuits caused by giving the boot to US companies like that, and using corporate sovereignty clauses in the various treaties, would help show the EU and other countries just how insanely bad those clauses are.

        reply to this | link to this | view in chronology ]

        • icon
          tqk (profile), 22 Nov 2014 @ 2:17pm

          Re: Re: Re: Careful what you wish for...

          ... and using corporate sovereignty clauses in the various treaties ...

          Er, are you unaware that it's the US Trade Representative that's pushing that crap, not Europeans? Their (bought and paid for) politicians are falling for it, but the US is the one who's pushing it.

          Thank $deity that EU citizens aren't as stupid (or credulous, or as willing to sell their souls) as politicians appear to be.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Nov 2014 @ 4:47am

        Re: Re: Careful what you wish for...

        i like that idea, alot......kick their corporations out

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Nov 2014 @ 4:14am

      Re: Careful what you wish for...

      Very good points

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Nov 2014 @ 11:46pm

      Re: Careful what you wish for...

      Very well said.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Nov 2014 @ 3:42am

    this i can respect.....this use of the representative position......to, you know, represent FOLKS

    reply to this | link to this | view in chronology ]

    • icon
      tqk (profile), 22 Nov 2014 @ 2:51pm

      Re:

      ... this use of the representative position......to, you know, REPRESENT FOLKS

      ftfy.

      However US Trade Representative has everything to do with "trade", as in "companies", as in corporations, as in "business." It has nothing to do with citizens or taxpayers except tangentially, as their interests are *supposedly* looked after by "other departments" (FCC, FTC, NOAA, CIA, NSA, FBI, & etc).
      "The main lines along which military events progress, and to which they are restricted, are political lines that continue throughout the war into the subsequent peace."

      Or (paraphrased) "War is the extension of diplomacy by other means." -- Carl von Clausewitz.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Nov 2014 @ 3:59am

    Easy to pass a contraversial law hundreds of miles away from you, and not be accountable to the people that law affects, then it is to pass a controvrsial law in your own back yard and be accountable to your neighbours, im starting to think thats by design

    One world government.........i dont see it ever unifying anything, i can already start to see that its gonna add just more laws onto a pile of more laws, laws contradicting other laws, and countries, never before seen in these current empires, trying to pass their laws over citizens of another country

    Just one big pile of poo..........if you centralize that power, give it absolute authority and make not one concession to abuse of that power unchecked........

    I like the few stances ive seen from the eu, but thats now, eventually, the sam paws in our government will find their way there too, its corruptions nature..........the ONLY way i can see myself supporting the eu, is if they did a very fucking thorough investigation/research into govrnment/corporate corruption, and then made laws, or legal contract, that things like bribery, backroom deals, agreements dentirmental to rights etc etc was vry severely punishable, cheap to enforce, and enforceeble by the people at minimum.........seing as i doubt thats ever gonna seriously happen, then no...........oh, and how about folks in eu, actually being voted IN by the folks in eu

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Nov 2014 @ 5:12am

    As per usual, the US government being rude and obnoxious. No respect for sovereignty, no please, no thank you, just drop 'em and bend over. I'll be keeping my on them, and my back to the wall.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Nov 2014 @ 11:50pm

    As usual a sharp and insightful article, Glyn.

    reply to this | link to this | view in chronology ]


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