One of America's leading authorities on technology and telecom policy, Motley is a writer, television and radio commentator, political and policy strategist, lecturer, debater, activist, and policy advisor to The Heartland Institute.
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We have a gi-normous problem with Big Government proponents trying to take away the Constitutional rights of United States citizens – while simultaneously trying to bestow them upon non-citizens.
To wit: We currently are suffering a refreshed attempt by the Left (this time apparently, unfortunately backed by President Donald Trump) to substantially damage our Second Amendment right to keep and bear arms.
All the while, the Left continues pretending twenty-plus million illegal aliens have the full panoply of Constitutional protections – that are the exclusive purview of citizens. And in too many instances to count – extra-Constitutional privileges even we citizens do not enjoy.
All of this is warped and ruinous thinking.
So too is any attempt by the federal government to employ the few powers the Constitution expressly grants it – beyond our nation’s borders.
To wit: The last seventeen-plus years we’ve spent trying to turn Afghanistan into a fifty-first state. We can not and should not invade a country, topple a government and attempt to install a new one – because the existing regime does not live up to our founding document. There are hundreds of such countries – and that would be all we do.
Our rights – are our rights. Not theirs.
And conversely, our government’s expressly delineated powers – apply only to us. And only to our national territory.
To wit: The Feds trying to subpoena data on computer servers – in Ireland. A case the Supreme Court is currently hearing – in United States v. Microsoft Corporation. What the Justice Department wants from Microsoft – is no bueno:
“In 2013 U.S. law enforcement served on Microsoft a search warrant for customer data stored in our datacenter in Ireland. While we don’t believe that U.S. law grants the Government the right to reach across borders to obtain private information, we do believe that the U.S. should work with the Irish government to obtain the data they want. Unilateral actions like this will undermine privacy protections of customers everywhere, and are a recipe for international tensions, conflict and chaos.”
It is more than a mite obnoxious for the Feds to abjectly ignore Irish sovereignty – and unilaterally demand information (or anything else). We would be more than a mite perturbed were Ireland to do any such thing to us.
When we want to extradite a person from another country – we negotiate with that country to get him.
Data should be treated no differently. If we want what’s there – we should ask the national hosts.
You know who else thinks so? A lot of the rest of the planet. Twenty-three amicus briefs with an aggregate of 288 signatories from across 37 countries were submitted to the Supreme Court in support of Microsoft and against the Department of Justice.
This case is yet another example of the Trump Administration inheriting terrible policy from the Barack Obama Administration. This is a stupid lawsuit begun by Obama, Inc. – and continued under Trump largely by bureaucratic inertia.
I wish Trump, Inc. would simply stop all of these instances of bequeathed nonsense – but that’s an entirely different discussion.
Many of our Supreme Court Justices think this is a job for Congress – and legislation clarifying the problem. Even the Leftist of the Left:
“‘Wouldn’t it be wiser just to say let’s leave things as they are, and if Congress wants to regulate in this brave new world, it can do it?’ (Justice Ruth Bader) Ginsburg said.
“Several times the justices mentioned pending legislation to address some of these issues. Republican Sen. Orrin G. Hatch of Utah, a sponsor of the Senate bill, sat near the front of the courtroom for the arguments.”
You know who else wants Hatch and Congress to solve this?:
“The legislation known as the Cloud Act has the support of both the Trump administration and Microsoft….”
Which yet again begs the question – why are we before the Supreme Court if the Trump-Administration-plaintiff – thinks this should be solved by the Legislative Branch? But I again digress….
Even still: “(L)awyers on both sides said the court should decide the case before it, not wait for Congress to act.”
That may be largely a function of a cumulative, complete lack of faith in Congress doing anything of the sort in anything like a timely manner. Which is not at all an unfounded notion.
That being said, the Supreme Court should rule for Microsoft – and against an internationally-overreaching U.S. federal government.
And then Congress should pass a Constitutional-muster law – that clarifies how the U.S. government should go about getting overseas data.
Hint: It ain’t by unilaterally barging into other countries and demanding what we want.
[Originally Published at RedState]