Automobiles, Motorcycles and Libertarian Politics
Ireland is not our enemy … yet.
But if Obama’s Inspector Javert-like Justice Department isn’t reigned in by cooler heads, it just might become one. Maybe some heavier-hitters, too
Here’s the skinny:
Microsoft had some servers located in Ireland. The feds wanted – demanded that – Microsoft to give them access to the data on those servers, which it claimed it needed as part of a drug investigation it was conducting. Microsoft balked, pointing out to the DOJ’s Javerts that American law doesn’t apply in Ireland. That acceding to the DOJ’s demands would put Microsoft in the very unpleasant position of acting illegally under Irish law.
DOJ didn’t like this.
Microsoft was held in contempt of court for refusing to cooperate.
Neither did the Irish, who were not happy about what they viewed as the Feds’ over-stepping not just their authority but international boundaries.
Irish soil – Irish law.
Understandable – and not just to the Irish.
If the Feds could suborn Microsoft to violate Ireland’s laws, why should Ireland respect American laws?
Why should the Russians – or the Chinese?
This is no small thing.
Maybe the Irish government has interest in data stored on servers located inside the United States; maybe the Russians and Chinese do, too. Maybe they decide their “interests” outweigh legal protections afforded under American law – and apply heavy pressure to the targeted company to hand it over contrary to American law.
How could we possibly object?
Kettle – black.
And while Irish law may be more or less similar to American law, Russian and Chinese law – particularly as regards privacy protections – isn’t. There is no Fourth Amendment in Moscow or Beijing. No “probable cause” requirement. The only thing holding them back from doing as they like to U.S. companies with operations in their country is fear of quid pro quo. But if we do it to them, why shouldn’t they do the same to us?
You see the problem.
As did the U.S. Second Circuit Court of Appeals, which ruled against the DOJ – and in favor of Microsoft (and Ireland).
And the rule of law.
Which brings up the broader problem.
There isn’t any.
The “applicable” law used by the DOJ to hound Microsoft is a Reagan-era relic called the Electronic Communications Privacy Act, which is air-quoted because it hardly applies to anything in the digital age. Because it was written decades before the digital age; before there was an Internet, before e-mails … before personal data on servers existed… here or abroad.
The laws governing online privacy never caught up with technology – creating a gaping loophole for the DOJ to drive a jacked-up digital Hummer through.
Under EPCA, the usual warrant and probable cause requirements that applied to physical documents either didn’t apply – or applied less to digital data. For example, data older than 180 days could be accessed without a warrant.
The reason being that – before the advent of servers with effectively unlimited capacity, which can store data forever – data such as e-mails would be routinely purged after 180 days to make space for new servers. It was thought (rightly) that warrant and probable cause issues were nullities after 180 days – because you can’t search for data that no longer exists.
A new law, the International Communications Privacy Act, is now being considered by Congress – to deal with EPCA’s shortcomings (including rescinding the “180 day loophole” for data mining without a warrant) and to tamp down the international kerflufel over whose laws apply.
Counties would agree to a legal framework for dealing with issues that arise such as the Microsoft server debacle. Rather than strongarming the company to act contrary to the laws of a host country, the applicable procedures would be agreed to beforehand – and above-board. Everyone would know the rules before the game begins.
That way, no one feels fouled unfairly when the whistle blows. People’s privacy here – and abroad – would be respected.
States with sketchy histories of respect for privacy and procedure – such as Russia and China – would be more inclined to play by the rules, when we agree to do the same thing.
The lame duck Congress could do a service by reigning in the lame duck DOJ – and passing the ICPA.
The lame duck president’s DOJ is trying to reopen a case it lost a few months back when a circuit court ruled that attempts by the federal government to strong-arm American businesses operating in foreign countries to act contrary to the applicable law in the country where they are doing