[bestbits] PRISM - is it about the territorial location of data or its legal ownership

[parminder]

On Monday 24 June 2013 08:18 PM, Katitza Rodriguez wrote:
> Only answering one of the questions on jurisdictional issues: The 
> answer is somewhat complex
>
> if data is hosted in the US by US companies (or hosted in the US by 
> companies based overseas), the government has taken the position that 
> it is subject to U.S. legal processes, including National Security 
> Letters, 2703(d) Orders, Orders under section 215 of the Patriot Act 
> and regular warrants and subpoenas, regardless of where the user is 
> located.
>
> The legal standard for production of information by a third party, 
> including cloud computing services under US civil 
> (http://www.law.cornell.edu/rules/frcp/rule_45) and 
> criminal (http://www.law.cornell.edu/rules/frcrmp/rule_16) law is 
> whether the information is under the "possession, custody or control" 
> of a party that is subject to US jurisdiction. It doesn’t matter where 
> the information is physically stored, where the company is 
> headquartered or, importantly, where the person whose information is 
> sought is located. The issue for users is whether the US has 
> jurisdiction over the cloud computing service they use, and whether 
> the cloud computing service has “possession, custody or control” of 
> their data, wherever it rests physically. For example, one could 
> imagine a situation in which a large US-based company was loosely 
> related to a subsidiary overseas, but did not have “possession, 
> custody, or control” of the data held by the subsidiary and thus the 
> data wasn’t subject to US jurisdiction.

Interesting, although maybe somewhat obvious! So, even if an European 
sends a email (gmail) to another European, and the transit and storage 
of the content never in fact reaches US borders, Google would still be 
obliged to hand over the contents to US officials under PRISM...... Can 
a country claim that Google broke its law in the process, a law perhaps 
as serious as espionage, whereby the hypothesized European to European 
email could have carried classified information! Here, Google, on 
instructions of US authorities would have actually transported a piece 
of classified - or otherwise illegal to access - information from beyond 
US borders into US borders.

What about US telcos working in other countries, say in India. AT&T 
(through a majority held JV) claims to be the largest enterprise service 
provider in India. And we know AT & T has been a somewhat over 
enthusiastic partner in US's global espionage (for instance see here 
<http://www.techdirt.com/articles/20100121/1418107862.shtml> )... Would 
all the information that AT & T has the "possession. custody and 
control" of in India in this matter not be considered fair game to 
access by the US...... All this looks like a sliding progression to me.  
Where are the limits, who lays the rules in this global space....

parminder


>
> On 6/24/13 5:28 AM, parminder wrote:
>> Hi All
>>
>> There was some demand on the bestbits list that we still need to ask 
>> a lot of questions from the involved companies in terms of the recent 
>> PRISM plus disclosures. We are being too soft on them. I refuse to 
>> believe that everything they did was forced upon on them. Apart from 
>> the fact that there are news reports 
>> <http://www.bloomberg.com/news/2013-06-14/u-s-agencies-said-to-swap-data-with-thousands-of-firms.html> 
>> that US based tech companies regularly share data with US gov for 
>> different kinds of favours in return, or even simply motivated by 
>> nationalistic feeling, we should not forget that many of these 
>> companies have strong political agenda which are closely associated 
>> with that of the US gov.   You must all know about 'Google Ideas 
>> <http://en.wikipedia.org/wiki/Google_Ideas>', its revolving doors 
>> with US gov's security apparatus, and its own aggressive regime 
>> change ideas 
>> <http://www.informationclearinghouse.info/article34535.htm>. Facebook 
>> also is known to 'like' some things, say in MENA region, and not 
>> other things in the same region.....
>>
>> Firstly, one would want to know whether the obligations to share data 
>> with US government extended only to such data that is actually 
>> located in, or flows, through, the US. Or, does it extend to all data 
>> within the legal control/ ownership of these companies wherever it 
>> may reside.  (I think, certainly hope, it must be the former, but 
>> still I want to be absolutely sure, and hear directly from these 
>> companies.)
>>
>> Now, if the obligation was to share only such data that actually 
>> resided in servers inside the US, why did these companies, in face of 
>> what was obviously very broad and intrusive demands for sharing data 
>> about non US citizens, not simply locate much of such data outside 
>> the US. For instance, it could pick up the top 10 countries, the data 
>> of whose citizens was repeatedly sought by US authorities, and shift 
>> all their data to servers in other countries that made no such 
>> demand? Now, we know that many of the involved companies have set up 
>> near fictitious companies headquartered in strange places for the 
>> purpose of tax avoidance/ evasion. Why could they not do for the sake 
>> of protecting human rights, well, lets only say, the trust, of non US 
>> citizens/ consumers, what they so very efficiently did for enhancing 
>> their bottom-lines?
>>
>> Are there any such plan even now? While I can understand that there 
>> can be some laws to force a company to hold the data of citizens of a 
>> country within its border, there isnt any law which can force these 
>> companies to hold foreign data within a country's borders... Or would 
>> any such act perceived to be too unfriendly an act by the US gov?
>>
>>
>> I am sure others may have other questions to ask these companies.....
>>
>> parminder
>
>
> -- 
> Katitza Rodriguez
> International Rights Director
> Electronic Frontier Foundation
> katitza at eff.org
> katitza at datos-personales.org  (personal email)
>
> Please support EFF - Working to protect your digital rights and freedom of speech since 1990

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