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The Microsoft executive attending the CeBIT Press Preview in Hannover, Germany, let the global press representatives there know that his company was taking action to forestall any additional efforts by the U.S. Department of Justice to access information in European data centers.
The company, he said, was in the process of building a new data center in Germany that would be designed so that it would have no connection to networks in the United States. It would be operated by Microsoft’s German subsidiary.
Facebook, meanwhile made an even wider announcement that it was doing the same thing by building a new data center in Clonee County, Ireland, near its international headquarters. Other companies, including Tableau and Foxconn, are doing the same thing instead of opening new U.S. data centers.
Meanwhile, negotiators from the United States and the European Union are trying to work out a new Trans-Atlantic Data Transfer Agreement to regulate how data access is managed between the two regions. It would reportedly provide mechanisms for EU citizens and companies to sue in U.S. courts for violations of the agreement.
All of this is necessary because the European Court of Justice struck down the existing data transfer agreement because of revelations by former National Security Agency analyst Edward Snowden that U.S. intelligence agencies were routinely gathering information from the EU that was protected by EU law.
In addition, the efforts by the U.S. Justice Department to gain access to emails contained in a Microsoft server located in Ireland and belonging to an EU citizen without using existing Mutual Legal Assistance Treaties (MLAT) have caused deep concern in the EU.
In that case, the Justice Department served Microsoft with a warrant demanding access to the email and Microsoft refused. Microsoft has repeatedly held that the existing treaties are the law of the land and that the DOJ should follow the provisions spelled out in the treaties for requesting access to data stored in servers overseas.
The Justice department has refused claiming that using the MLAT was inconvenient and too slow. As a result, the DOJ has spent more than two years so far in order to save the six months that an MLAT request usually takes.
The problem that the EU has with all of this is it believes that the existing treaties and agreements have been working just fine for 15 years. Then, two years ago, the Justice Department, pursuing a drug investigation, decided it wanted emails from an EU citizen that were stored on servers in Ireland, an EU member nation. Microsoft has refused to comply.
Since then, the DOJ has been pursuing Microsoft, and the company has been appealing. So far, the emails on the Irish server have remained there undisturbed, assuming they still exist, despite the assertion by the Justice Department that all Microsoft needed to do is go to the server and copy them.
Tech Companies Act to Prevent U.S. Access to Data Stored Overseas
While this was true, Microsoft said that the emails belonged to the customer, not Microsoft and that the DOJ needed to use the established legal procedure to accomplish this.
The European courts, believing with some justification that the U.S. government couldn’t be trusted to obey its own laws, have invalidated the entire agreement. The deadline to get a new one in place is the end of January. If no agreement is reached, the EU can simply block all data transfers from Europe to the United States.
As you might imagine, such a data blockade would devastate trade between the United States and the EU. It would also hurt U.S. tech companies that do business in Europe, which is why they’re building those data centers to serve their European customers, but without network connections to the United States. Considering that these data centers are located in Europe and are operated by European subsidiaries of their respective companies, this should be an effective barrier against intrusions by U.S. law enforcement agencies.
The negotiations are currently at an impasse, however, because the EU is insisting on more effective guarantees that the U.S. government won’t simply ignore the treaties again and try to get access to EU data regardless of what the law says. The U.S. Department of Commerce, which is handling the negotiations, is pooh-poohing the EU concerns and is saying that the existing agreement is good enough.
The problem that the EU has is that they don’t trust the United States. This should be no surprise. The United States has already run roughshod over the existing treaties, existing agreements and the law of the land in the name of convenience. Meanwhile, U.S. intelligence agencies have shown that they have no compunctions against gathering data from U.S. trading partners or even our closest strategic allies.
While there may be some justification on the part of data gathering by intelligence agencies (that is their job, after all), the complete disregard for the law by the Department of Justice is harder to fathom. Worse, the flimsy excuses the agency uses strain credulity. It appears that because of the impatience of a few bureaucrats with an inflated sense of their own importance the DOJ is willing to break the law and perhaps permanently endanger trade and long-established friendly relations with Europe.
I have to say that I can understand the insistence of guarantees by the Europeans. What I don’t understand is the belief that they can deal with the current administration in anything like good faith, given its track record on the privacy of data stored overseas.
Perhaps the only thing that will get their attention is for EU authorities to block data transfers and allow trade between the United States and EU to bog down as a result. The question then is whether their own arrogance will allow them to see the damage they’re causing.