Latest posts by John Engle (see all)
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Last week a federal judge ordered Microsoft to hand over its data stores to the government, including data housed overseas. The ruling marks an ominous new chapter in Internet privacy, one that could have lasting impacts on both individuals’ privacy online and the nature of international law.
The ruling is meant to make it impossible for individuals and firms engaged in elicit practices to hide the evidence of their wrongdoing in datacenters in other countries. There is something to that, but the idea that the government should be given access to the vast trove of data housed by Microsoft and other tech firms is extremely worrying.
Fourth Amendment Online
Microsoft argued unsuccessfully that the data stored, such as personal emails, ought to be granted the same degree of constitutional protections as hard copy mail and records. The judge did not see it that way and ordered a far wider reaching handover of data than would happen in a non-digital platform. The sad fact is that the government continues to treat the Internet and the correspondence carried out on it as a piggy bank of data with only marginal legal privacy protections. That has to change.
People carry out ever larger parts of their lives, both personal and professional, online. The Internet is the new grand communications venue for people of all nations and its critical import must be recognized by law. The very notion that a court can order a business to hand over all of its data held both domestically and abroad is a monstrous violation of the Constitution and individual liberty.
An International Incident
The ruling is so sweeping in its application that it includes an order to hand over all data, including that of foreign nationals. That has, for obvious reasons, caused significant unrest in many countries. The EU has already passed data protection laws aimed at preventing the transfer of their citizens’ private data to a foreign government, and they are in the process of drafting still more rigorous laws that would likely block orders like that handed down to Microsoft.
The EU is not unreasonable. Indeed, it is quite bizarre that the federal government thought it could get away with such a brazen violation of foreign nationals’ rights. Looking at the situation in light of all the recent revelations about American spying on European allies, it is hard to understand what the government is trying to achieve. If their aim is to alienate major allies and damage further America’s already battered reputation for digital probity, then they have succeeded with flying colors.
A Dangerous Precedent
The future is a grim one if the United States succeeds against all reason to establish an international norm in which domestic businesses can be ordered to hand over data held in foreign countries. If that is normalized, countries like China and Russia would have sufficient cover to engage in similarly draconian practices.
A world in which countries mine their companies’ foreign data centers is a world in which few such data centers will exist. The world is benefited by the interconnectivity promoted by the Internet. America should not destroy it with mindless heavy-handedness.