Theater of Cruelty

Monster with billions of eyes

The United States can soon gain global access to all private data traffic abroad each time Microsoft, Google or similar companies are used.


Perhaps the "digital utopia" was planned right from the beginning: Modern humans should be made digitally dependent on the same lines as alcohol or drugs. When the Internet and social media have become indispensable both physically and mentally, and most public services such as banking, mail, commerce, school, education, health and care have been digitized, new laws come into play: All digital communications are stored, and the authorities get unlimited access to citizens' data usage on a global basis. The terrorist threat is used as a moral club to enact unlimited surveillance of society. Can we – people of flesh and blood – resist the digital monster?

Warning. The decision falls this year: Investigators in the United States will have access to data from around the world, hoping to get the green light from their Supreme Court, the Supreme Court. Alarm bells are ringing loudly in the EU, the UN, governments and major international business and trade associations, which now warn of a frightening future for the free internet – a future that, according to Der Spiegel and Die Zeit, will be decided in Washington DC this summer.

Many millions of web users store virtually all their privacy in the cloud – emails, tax returns, documents and photographs. The United States Supreme Court will be able to provide access to data regardless of which country they are stored in and regardless of which laws are enforced in the respective countries. Access to the information only requires the company that manages it to be active or present in the United States.

Following the Snowden disclosures on comprehensive surveillance that increased skepticism to US authorities, US companies are now storing more of their data in Europe, according to German news magazine Focus Online.

International business will either have to break the law in the country they belong to or become offenders to US authorities.

The topic of surveillance is getting to the very top of the political agenda. The United Nations, the European Commission, and the governments of Ireland and the United Kingdom – yes, even conservative officials in the United States – have engaged in the Microsoft case by writing so-called Amicus letters, which allow non-parties to speak himself in an ongoing legal battle. German industry associations BDI and DIHK are also addressing such a letter to Washington these days.

To the Supreme Court. The case began to escalate in 2013, when the US Department of Justice investigated a drug case and demanded that Microsoft access the suspects' email account. A New York City Judge had issued a search warrant referring to a 1986 law. However, a problem arose: The mail server was in Ireland. Microsoft thus declared that the search warrant from New York was invalid. The first lawsuit lost Microsoft, but investigators were still denied access to anything other than the company's US-stored data. In the second half, Microsoft won. The US Department of Justice took the case to the Supreme Court – and in June, the Supreme Court will deliver its final verdict. The outcome is open – but the authorities' constant reference to the danger of terrorism as a case factor is perceived by many as a danger signal.

Irish resistance. In the letters to the Supreme Court, everyone except the British strongly warns against giving US investigators access to foreign data. The European Commission urges the United States to comply with international law and practice, and points out that those who want access to information may have to obtain this through existing international agreements and rules. These laws are laid down in the EU Privacy Regulation, which will apply in all EU states from 25 May 2018.

Ireland points out that they are in principle willing to share information with the United States by applying the above EU regulations. But the US Department of Justice's approach in this case sees the Irish government as an attack on Irish sovereignty. To this the Americans respond that the Irish must in any case submit sovereign rights to the United States court in order for the claims to be legally binding. This is strongly rejected by the Irish side. Irrespective of the fact that Ireland did not intend to intervene in a US legal dispute, it would in no way mean that Ireland accepts a violation of its sovereignty.

From their own. However, the strongest warnings come from several former justice and security officials, including the well-known conservative US Homeland Security Secretary Michael Chertoff: international secret services at risk. In addition, the risk of a "Balkanization" of the Internet is imminent: this will happen if states by force should decide that important data is stored exclusively within a country's own borders – in order to prevent foreign countries from gaining access to information.

Utopian demands. "The Internet in its current form would be a thing of the past," said EU MP Jan-Philipp Albrecht of the Green Party, according to Der Spiegel. Not only would US investigators become active outside their own borders; such a license will have serious consequences for internet users globally. Especially when states without respect for rights are on the move.

The Chinese would demand data information from companies active in China, including American ones, Albrecht believes. Turkish investigators would appear in the Google branch in Istanbul and demand access to the email of so-called state enemies in Germany, and Russian scouts would appear at Microsoft in Moscow and demand similar information provided.

Several business unions are afraid of "far-reaching consequences for millions of companies". A lawsuit to the US Department of Justice would in fact concern any cross-border data traffic. This is particularly pointed out in the draft letter to the Confederation of German Industry (BDI) and the German Chamber of Industry and Commerce (DIHK). The letter will be sent to the Supreme Court jointly with the Irish, Polish and French federations. International business would be in a big dilemma: either to have to break the law in the country they live in or to become criminals before US authorities.

"The EU has to legislate data protection from May 2018," claims Albrecht. "The European Court of Justice will not hesitate to pass laws in this area," he said. For companies like Microsoft, this will undoubtedly mean that the company's companies located in the EU will have to be separated – in the worst case, they will have to withdraw from Europe.

The EU's dilemma. The European Commission has contacted the US Supreme Court on behalf of the European Union. Europe's own institutions, for their part, are in a difficult situation: the EU authorities are more than happy to store data from Google, Microsoft and other major players from the cloud services' databases, most of the major players known to be stationed in the United States. "In this case, the EU actually has more to lose than the Americans," said a European Commission official.

Inspectorate. Ny Tid contacted the Norwegian Data Protection Authority with questions about how Norway will relate to the consequences of a judgment decision from the US Supreme Court. At the present time, they could not comment on the case.

Hans-Georg Kohler
Hans-Georg Kohler
Kohler is a regular reviewer for Ny Tid. Artist.

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