Tuesday, 27 February 2018

Piss off US Government

Disclosure : This blogger is hopping mad and this post is written in a state of fury . Readers beware !

Why is it so difficult for the United States to understand a simple principle - the laws of the United States apply to the geographical boundaries of the country. It does not apply globally. It certainly does not apply to me.

The trigger for this rant is the case between the US government and Microsoft that is now up before the US Supreme Court. The case involves the US government demanding that Microsoft give up emails of foreign citizens stored in its server in Ireland. Microsoft refused. Hence the case. As the case wound up through the layers of the US justice system, two lower courts ruled for the US government. However the Appeals Court in New York ruled with Microsoft. Now its in the Supreme Court.

The US government's position is that Microsoft is a US company and therefore its laws apply worldwide - a notion that is seductive, but flawed. We've been there many times before. What is a "US Company" ? Is it because it is headquartered in the US ?  If that is the logic, then its easy to beat it. My contract when I use Microsoft services can easily be modified to be with Microsoft India, an Indian company. That will make it outside the US jurisdiction.

Wait a minute, will say the US worthies. Microsoft India is a subsidiary of Microsoft US. So ultimately it is a US company. So, is beneficial ownership the norm ? That's easy to refute too. Who are the shareholders of Microsoft US ? Bill Gates holds most of the shares but there are foreign entities as well. Take Citibank. The largest shareholder is the Emirate of Abu Dhabi. The second largest holder is Prince Alwaleed of Saudi Arabia. So , Citibank is an Arabian company subject to GCC laws ?

Complicating the matter is the obsolete US constitution. The constitution , which  Americans swear by, is written in prehistoric times. They have a system where the constitution can never be amended. And they have packed the Supreme Court with "originalists" (RIP Antonin Scalia), who interpret the words literally. Nobody ever thought of globalisation and the Internet when the US constitution was written. The protection is only under the Fourth Amendment which relates to unreasonable searches and seizures.

The country actually most pissed off by all this is Germany which has strict privacy laws. The German Government has declared that if the US chooses to read every email and access every data, it will simply stop using "American" companies altogether.

Just because you can do something does not necessarily mean that its a good thing to do. Here is a poser to Americans. Consider a situation where E Bay is acquired by Jack Ma (an entirely plausible scenario). Alibaba is a Chinese company. So if the Chinese government decides to monitor every transaction on E Bay and required Alibaba to hand over all details to it. Would Americans take to that meekly ? 

The right thing for America to do would be to execute treaties with other governments on data sharing and then operate under the framework. Sure, that's difficult. But that is the right thing to do.

The US won't do that of course. It has never done that. Principles of natural justice apply only when convenient. They poke their ugly noses into every aspect of my life - I am still signing the damned FATCA forms . I can only rant and rave. Hence the title of the post.

This post is being stored on a Google server in the US. Presumably this will be handed over to John F Smith II from Topeka, Kansas (the American equivalent of Ramamritham). I hope he can see my middle finger !



10 comments:

Sriram Khé said...

When even Ramesh shows the middle-finger, ahem, ...

It is strange,to say the least, that the party of commerce--the Republicans--are also the ones who nominate and celebrate the "originalists" who fail to understand that the Constitution was written in an entirely different context. While Progressives always want to challenge the constitution, the Conservatives hold on to it tight, and even defend it with their favorite assault rifles!

Last fall, during a SCOTUS hearing on gerrymandering, the Chief Conservative, er, Justice, referred to quantitative reasoning as "sociological gobbledygook" ... do you trust this guy and his fellow nutcases when legal aspects of big-data come before his court? Damn idiots who were put in such powerful positions by the highly ideological Republicans!

Maybe the late scalia, and scalito and the new kid on the block, would even defend the original constitution that was in place before the abolition of slavery. You know, the good Constitution that allowed southern states to count slaves as 3/5 persons for purposes of apportionment in Congress--even though the slaves could not vote. Slaves were mere property, and the Constitution was pro-commerce!

Welcome to my world of ranting, and shaking the fist against (name it) ... very cathartic, even if nothing comes out of it ... I strongly recommend this treatment to everybody ;)

gils said...

thala..Idhu avlo seriousana issueva? right to privacy pathi oralavuku i've some idea which stops at private conversation shouldn't be made public. but beyond that what is the impact other than it not being ethical is something i don't get it.

Ramesh said...

@Sriram - Yes, I struggle to understand originalism coupled with an absolute impossibility to ever amend the constitution.

@Gilsu- Very serious Gilsu. I recommend the book Nineteen Eighty Four by George Orwell (since you are in a book reading mode) for a description of what might happen.

Anonymous said...

Slowly rest of the world will keep distant from US companies and product in coming years. today technology is not a big deal to create competition to US tech firms but the patent. countries will join together and find a solution if US government commits nonsense like this.

Ramesh said...

@Anon - Happy to agree with you on this one :)

gils said...

1984 have started reading many times but couldn't finish. Synopsis have read. Thing is with shows like big boss n brother, bachelor etc thriving it's looking like people doesn't mind others watching!!! If some govt openly says they tap Ur phone u can protest. But I am pretty sure uncle sammies are already doing it.

Anne in Salem said...

I read an article about this case this morning and had a different reaction than you. Yes, the US government is asking for something of a US country that happens to sit in another country. I can't find enough information to form a solid opinion on the matter. Aren't US companies subject to US laws? Were the emails between US citizens? Were they in the US when the email exchanges took place? Were the emails originally saved by a cloud in the US then moved to Ireland? Microsoft doesn't even have to travel to Ireland to get it, courtesy of its own technology.

If I robbed a store in California and hid the loot in Oregon, couldn't CA demand I turn over the loot even though it's currently in a different state? What is the difference?

I'm trying to imagine you giving anyone or anything the bird . . .

Ramesh said...

@Anne - Its entirely concerning non American citizens. What the US is trying to really do is monitor communications between foreign terrorists. That's the real target. Everything is happening outside the US, but might have an impact in the US if the ultimate terrorist target is the US. But in order to do that they are throwing a dragnet on everybody.

I remember an expert report on the balance to be struck between privacy and intelligence and the way it could be dealt with for foreign countries and nationals. It was a superb report and I felt at that that it was a good balance. Not sure where that's gone.

Anne in Salem said...

If you find the link to that report, I'd be delighted to read it. A delicate balance to be sure.

Ramesh said...

@Anne - Try the following oinks which gives details of the case. Apparently , in this case, it relates to a suspected drug dealer rather than a terrorist. Microsoft has stated that the government has not stated that they are investigating either a US resident or even a US citizen. It appears that the account holder resides in Europe.

https://www.wired.com/story/us-vs-microsoft-supreme-court-case-data/

https://www.washingtonpost.com/world/national-security/supreme-court-case-centers-on-law-enforcement-access-to-data-held-overseas/2018/02/25/756f7ce8-1a2f-11e8-b2d9-08e748f892c0_story.html?utm_term=.cbefb366f553

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