Think Tank Warns U.S. Surveillance Efforts Undermine IT Industry

By Wayne Rash  |  Posted 2014-12-10 Print this article Print
Microsoft federal court appeal

The report also details the workings of the various MLAT agreements between the U.S. and foreign governments. Perhaps most important, the report lays out what kind of protections they provide the citizens whose information is being sought.

But if there's a weakness in the report's analysis, it's in how to handle situations where the U.S. government simply ignores the law, and attempts to induce the federal courts to force American companies to comply with the wishes of prosecutors in the name of expediency.

This is the situation with the Microsoft case in which the prosecutors have gained the cooperation of the federal district court in New York to create a novel hybrid warrant that's also a subpoena—a legal creature that seems to exist nowhere in U.S. law, except in the arguments of those prosecutors.

Moran also examines the case of Apple and Google, which have released versions of their mobile operating systems that contain encryption keys that prevent anyone, including Apple and Google, from gaining access to their devices without the cooperation of the owner of the device. This has been a topic of consternation on the part of the Justice Department and the FBI, but so far no agency has found a legal way to circumvent the encryption on these devices.

What's not mentioned is what happens if the U.S. government decides to ignore existing surveillance law and order Apple and Google to create back doors to their operating systems. Is there a way to force these companies to comply with such orders even if they're not supported by legislation or case law?

While this may sound like a facetious question, the fact is that with the Microsoft case, the DoJ has already decided to ignore existing law in its effort to force the company to reveal the contents of an email that's protected by European law. There is already an MLAT between the U.S. and the European Union. If the DoJ wants access to the email, there's an existing means of gaining access legally.

But the U.S. prosecutors contend that using the existing treaty is inconvenient. It might take too long, they say. But is the real reason that the U.S. prosecutors lack sufficient probable cause that their request might not make it through the existing legal system? Are they worried that European privacy concerns might trump their efforts to run roughshod over the treaties?

Here is where it's important to mention the fact that treaties, once signed and ratified, are the law of the land. Even if the AEI's proposal were to be adopted, what happens when the U.S. decides to ignore the law in favor of strong-arm tactics in the name of convenience?


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