back to article Apple, Cisco line up to protect offshore data

Apple and Cisco have aligned with Microsoft to support its fight against a US warrant that would give American law enforcement authorities access to data stored in offshore cloud servers. The two have filed a joint amicus brief in the case, adding their names to a list that includes Verizon, AT&T and the EFF. In late April, a …

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Holmes

You have to admit, they have a "valid" point...

But any company or individual placing their data in the hands of a U.S. based company is basically handing over their data for rape. For whatever perceived purpose...

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I believe the response is likely to be "the judge was wrong, but only due to this minor esoteric error in the application of the law." No precedent will be set, nothing will in fact be decided.

The issue here is that US law doesn't allow for the consideration of other countries, their laws or the rights of non-Americans. The only definitive ruling to be made in this case is that the laws of other countries don't matter because other countries don't matter...as a point of law. If, however, that ruling were made publicly at this juncture, the feedback would be catastrophic.

Thus this will be punted, and then handled discretely during some other trial in the future, when the rest of the world isn't looking quite so closely.

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"The issue here is that US law doesn't allow for the consideration of other countries"

And the folly of this position will rapidly become apparent the moment other countries decide to play quid pro quo. ie When Ms Merkel (to pick an example) summons the chief of Apple's (ditto) German subsidiary and demands large swathes of their American-held customer data... with the threat of crippling fines for non-compliance.

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Okay, let's say for a moment that you're right. That someone (we'll use Mrs Merkel as our example) has the osmium gonads required for such a move. Let's ask the tough questions.

If you're the Apple exec, do you cave? If you give that data to German authorities then you're in violation of US law. If you don't, you're in violation of German law.

From an economic standpoint: the US is the larger market. If you have to pull out of any market in order to protect you US revenue, then you do so. It sucks, but that's politics. You lobby, you whine, you carry on until you're allowed back in...but the US gravy train is the one you protect.

From a personal perspective: if you risk jail directly in either nation then the one you don't want to end up in is the US jail. More to the point, you have to look at "how long will you be in jail" and "how much of your wealth do you get to keep so that when you come out of jail you can Live Well." Also: how will your family be affected. Where does this piercing of the corporate veil start, where does it end?

"We'll levy fines against you" is a hell of a lot simpler maths than "we're going to enforce our viewpoints with guns." It sucks to no longer be able to do business in Germany, but it sucks a lot more if anyone is facing any jail time.

Now, would they? Where? In what nations is that true? Under what circumstances?

These are the issues that we, as a society, are having to hash out.

Powerful people say that copyright should be enforced at the barrel of a gun. And they get their wish. Why not surveillance? And why not privacy? This isn't just about money: these clashes are starting to get into fundamental philosophical differences between nations about the type of society that their people would like to see built. Those rarely end well, especially when the disputes are amongst allies.

I wouldn't want to be caught in the middle of it (I.E. being the above discussed Apple exec,) but I certainly don't think that any individual business interests are going to make a substantive difference to US policy in this matter. American Exceptionalism exists in many forms, not the least of which is this insular belief that "not America" cannot be considered in their law. (And frankly, many other nations are the same.)

To change that you need to start making fundamental changes to how the nation perceives itself, how the judiciary and government is organized, the role of the citizen and the role of a nation-state itself in today's more interconnected world. There's no reason whatsoever to believe that the US - or any other nation - will be "forced" to adapt. Nations have tried to take over the world for reasons more petty than resistance of social change...I do believe they'll fight and resist and struggle to the dying breath of last among them that believe in this vision of their nation.

Time is the only thing that will change that nation. Society evolves one funeral at a time...and we're decades away from being able to see any meaningful change towards openness, transparency or multilateral recognition of human rights...at least from the USA, and those nations most heavily influenced by her.

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Anonymous Coward

Let's do it the right way. Ms. Merkel summons Amazon to hand over data from the US GovCloud. When the US complains, Germany just says our law enforcement personnel shouldn't have to go through the tedious task of working with other countries to get the data.

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Okay. You're still left with the question of "what would the suits in question choose to do?"

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@Trevor Pott

"Time is the only thing that will change that nation."

Indeed. Most specifically, what may change this attitude of US exceptionalism is when the US is no longer top dog, trade-wise. Once that happens it will be in a far weaker position when trying to negotiation trade agreements.

Another thing that may change over time is when national constitutions start dealing with technology directly - such as addressing exactly how locally hosted data is to be viewed. After all, most, if not all, constitutions have a 'supremacy clause', which presumably overrides treaties as it does in the US.

Though of course there we have problems in the EU with conflicts between the EU constitution and those if the various members.

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Constitution changes typically require a referendum or at least a majority of provinces to agree to the change. In what western nation is that likely to occur? On what topic can any of our nations find unity?

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Don't you get it?

USA, USA, No 1.

The rest of the world don't count. The US rules ok?

If you have travelled around the US and talked to the people (outside the liberal Bay Area and some parts of New England) you get the clear impression that 'who the F**k are the countries who have the nerve to say No to US laws? 'Nuke the lot of them' was heard several times recently especially over Memorial Day weekend.

The US passed a law a long time ago giving US law sovereignty everywhere on this planet. Local laws having precident? Watch out, there is a B-52 on its way to deliver our answer.

Gungho and trigger happy nation who think they are masters of the Universe. Is it little wonder that so many other people hate them with a passion?

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The US might be bigger than Germany, but the EU is a bigger combined market than the USA...

And as said in the article, if Microsoft ascede to the US court and hand over the data, they are putting themselves, their employees and their customers at risk of prosecution in Europe - in the end, the user put his data on an American based cloud service and it has handed the data over, but he is still liable, because he didn't get written permission from his contacts and people named in his emails, before Microsoft handed the data over!

It would make using a US based cloud service for individuals a very dodgy situation and would make it illegal for businesses to use cloud services with any presence outside of Europe.

Such a decision would isolate the USA on the Internet and it would restrict cloud services to be regional only.

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Flame

Let's Up The Anti a Bit

OK so let us say Germany get the hump. Mrs M or her successor says to the EU data person I am not happy at the illegal flouting of our EU laws so Either US Mega Corp stands up and acts like a citizen or visitor to the EU or we take action and here is the action plan.

You do not like our laws, fine we do not like;

You selling in our EU back yard, Remember all those lovely patents you used to have, they were agreed under old laws that do not apply under OUR extra territoriality doctrine.

Remember all that tax free dosh you have in the Bank, sorry your had in the bank, its been 'sorted out for you'.

Remember all those against human rights gaols you use for anyone from the EU, we have one just for you in Greece, we have outsourced gaoling to them as they need the work.

You get one phone call to tell your corporate friends.

Have fun.

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@Trevor_Pott Re: "You're still left with the question................"

To be honest I am not sure that that is the most important question. The question is (IMHO) for how much longer is the US going to be the single most important market on the planet? Answer? A few more years max. Certain consequences are likely to flow from that inasmuch as the travails of the aforementioned US manager/company may become less and less important for the rest of us earthlings if their economy starts to become of lesser importance on a global basis.

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Anonymous Coward

Trevor... remember that Apple is legally based, for tax purposes, in Ireland (among other countries). So Mrs Merkel might enlist the help of some of her fellow Irish politicians, and then it might hurt Apple a bit more. ;)

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@AC No, their EU HQ (or non-USA HQ) is in Ireland. Apple is still incorporated in the USA.

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Anonymous Coward

Oh no, big_d... the money flows through ireland on it's way to other places, so a tight squeeze there will hurt regardless of where the HQ is. Remember, the money can never go back to the us, due to massive negative tax effects.

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Happy

Re: Don't you get it?

@anybody

"The US passed a law a long time ago giving US law sovereignty everywhere on this planet."

"The issue here is that US law doesn't allow for the consideration of other countries".

Calm down, when for instance smoking pot in Holland is allowed and stem cell research is allowed in the EU it does not matter at all what the US law says, not at all.

"From an economic standpoint: the US is the larger market."

The US population is 320M, Europe about 800M and the EU about 500M.

And if you look at the GDP per capita it's $51,749 in the USA. Listing some of the European countries you find there is no stellar difference anymore, this for 2012.

Czech Republic 18,690

Denmark 56,364

Finland 45,694

France 39,746

Germany 42,597

Ireland 45,921

Italy 33,816

Netherlands 45,960

Norway 99,636

Poland 12,710

Portugal 20,175

Spain 28,274

Sweden 55,040

Switzerland 78,928

United Kingdom 38,920

http://data.worldbank.org/indicator/NY.GDP.PCAP.CD

As anybody knows this does not tell everything but the point is that there is no way the USA will remain the number one market. And regarding the trade agreement between the USA and the EU it seems to me the USA is pushing while the EU, as I hope, will have a better look at the "small text".

And it does not matter at all. China was once probably the worlds largest economy like Europe too.

I am more concerned about the Wall Street creating yet another meltdown.

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Re: Don't you get it?

"Calm down, when for instance smoking pot in Holland is allowed and stem cell research is allowed in the EU it does not matter at all what the US law says, not at all."

Actually, an American who smokes pot or conducts fetal stem cell research in Holland would be in violation of US federal laws and thus subject to prosecution when they got home, were it to come to the attention of the federal law enforcement that this activity had occurred.

The US is unlikely to invade a sovereign country to impose it's laws on that countries citizens, but that isn't because the US doesn't believe it has the inherent right to do so. It absolutely does believe that. It simply doesn't have the ability to do so, as getting it's ass handed to it by a bunch of tribal in the goddamned desert for a decade and a half has more than proven. I seem to recall a distinct inability to impose their will on countries covered in jungle as well.

As a US citizen, break a US law while abroad and the US absolutely can prosecute you when you get home. As a foreign citizen, break a US law anywhere that the US has enough of a military presence to enforce their laws and they'll gladly charge you under their system too.

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Anonymous Coward

I'm sure just more than one country would join in on requiring the data to follow the local laws for it to be released. So 40% of their revenue would be cut from Amazon if Amazon had to make a choice.

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Couldn't they get around it?

Let's say Apple (for instance) creates a subsidiary named iCloud International Storage, based overseas in some place with more privacy friendly laws (say some country in the EU, hopefully one that doesn't jump just because the US says so, or at least not as high as the others) and it owns and operates the cloud servers that hold data on non-US customers, with a contract that specifies that Apple can access the data to provide service to its customers but has no control over it otherwise.

Even if US law was supposed to make Apple hand over the data, Apple would be unable to do so, and iCloud International Storage would not be subject to US law. They could create multiple layers of subsidiary, all based in different countries, to make it even more difficult.

Seems that would at least slow them down. If the US tries to argue that a solely owned subsidiary is the same thing as the parent company, they could give partial ownership of it to some pro-privacy group, which would also act as a canary in the coalmine for any future government arm-twisting that presumably occurred to get all those tech companies, and eventually Apple on board with cooperating with the NSA as revealed by Snowden.

If they did all that then Apple might find me filing a "change of address" on icloud.com using a non-US address :)

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Re: Couldn't they get around it?

Key word there is subsidiary. That wouldn't work. Apple Ireland is already a subsidiary, as is Microsoft Ireland. But they all report to a US based company.

As long as the corporation has any presence in the USA, it would be affected, even if the data is held by a subsidiary, as it is in this case.

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Re: Couldn't they get around it?

Exactly

Any company with a formal presence in the US has to comply with ALL US Laws no matter how stupid they are wherever on this PLANET it does any form of business. AND Those laws will supercede all local laws.

All that export compliance training eventually started to sink in.

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Re: Couldn't they get around it?

- Key word there is subsidiary. That wouldn't work.-

I agree. But how about a franchise?

Arrange for one or more companies in non-US countries to be set up to run either the whole [outlook|gmail|whatever].com or one or more [outlook|gmail|whatever].$NATIONALDOMAINs as a franchise at arm's length from [Microsoft|Google|Whoever] with the contract under the law of the franchisee's country.

All franchisee directors and shareholders to be non-US.

Add notice period for winding up the franchise or handing back data with all customers to be notified at the start of the notice period.

Add protection for the backups to be held by a third party with no provision for return if the franchisor started the wind up/hand-over process.

The US courts could huff and puff but any ruling would need to be handled by the franchisee and subject to the law, including data protection, of the franchise country.

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Bank with HSBC? Your info across the world is in the USA - and the PATRIOT Act

If you do a traceroute, even on HSBC.Co.UK, it leads through AT&T and Newark.

So in effect the US government can access your financial data without a warrant. And they don't even need the NSA!

Wonder what other UK banks hold their data outside the UK?

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