Drug trafficking and gmail: Now our email is needed to fight common crime?

Government's new power grab extends beyond intelligence gathering to stopping basic crime. Here's who's resisting

Topics: Ireland, Microsoft, Apple, verizon, data, Surveillance, email, dragnet, Department of Justice, Editor's Picks, Edward Snowden, united kingdom,

Drug trafficking and gmail: Now our email is needed to fight <em>common crime</em>?(Credit: AP/Kathy Matheson/Salon)

On both sides of the Atlantic, the English-speaking giants, the United States and United Kingdom, are moving to extend their data empire over the rest of the world.

While both these power grabs may be a delayed response to Edward Snowden’s disclosures, neither explicitly deals with it. And both power grabs extend beyond intelligence collection to common crime fighting.

The U.S. data grab started back in December, when the Department of Justice applied for a warrant covering an email account Microsoft held in Ireland as part of a drug-trafficking investigation. Microsoft complied with regards to the information it stored in the U.S. (which consisted of subscriber information and address books), but challenged the order for the content of the emails. After Magistrate Judge James Francis sided with the government – arguing, in part, that Mutual Legal Assistance Treaties, under which one country asks another for help on a legal investigation, were too burdensome — Microsoft appealed, arguing the government had conscripted it to conduct an extraterritorial search and seizure on its behalf.

As part of that, Microsoft Vice President Rajesh Jha described how, since Snowden’s disclosures, “Microsoft partners and enterprise customers around the world and across all sectors have raised concerns about the United States Government’s access to customer data stored by Microsoft.” Jha explained these concerns went beyond NSA’s practices. “The notion of United States government access to such data — particularly without notice to the customer — is extremely troubling to our partners and enterprise customers located outside of the United States.” Some of those customers even raised Magistrate Francis’ decision specifically.

The other American cloud computing companies piled on with amicus curiae briefs supporting Microsoft’s position: Verizon, AT&T, Apple, Cisco, Infor, as well as the NGO Electronic Frontier Foundation.



The government’s response, however, argued U.S. legal process is all that is required. DOJ’s brief scoffed at Microsoft for raising the real business concerns that such big-footing would have on the U.S. industry. “The fact remains that there exists probable cause to believe that evidence of a violation of U.S. criminal law, affecting U.S. residents and implicating U.S. interests, is present in records under Microsoft’s control,” the government laid out. It then suggested U.S. protection for Microsoft’s intellectual property is the tradeoff Microsoft makes for complying with legal process. “Microsoft is a U.S.-based company, enjoying all the rights and privileges of doing business in this country, including in particular the protection of U.S. intellectual property laws.” It ends with the kind of scolding usually reserved for children. “Microsoft should not be heard to complain that doing so might harm its bottom line. ”

However the legal fight ends up, this is largely legal theater in which a bunch of providers — including some of the ones (like AT&T and Microsoft) that have been most amenable to government intelligence collection requests – make a show of resisting the iron fist of U.S. demands.

Nevertheless, it makes clear that the U.S. feels free to demand data from U.S. companies no matter where that data is stored. So while Microsoft’s challenge largely serves to make its legal obligations visible to the rest of the world, the legal case may have real consequences, both legally and economically.

Meanwhile, on Tuesday the United Kingdom rushed an “emergency” Data Retention and Investigatory Powers bill (DRIP) through Parliament. There was, in fact, no emergency; at least, the British government had made no response to an April European Court of Justice decision that its existing data retention law did not meet EU protections for privacy until British privacy groups moved to challenge their practice.  But then on July 10, the British government introduced the bill and started wailing about an emergency posed by organized criminals and terrorists, leading Parliament to approve an accelerated consideration. Parliament had to approve DRIP immediately, the government said, to ensure the government could continue to access all metadata if needed.

The British government claims DRIP only authorizes existing authorities. But opponents argue DRIP includes a broad new definition of Web services that may extend beyond Web-based email services like gmail.

More important, DRIP would extend British authority to include non-British companies.  The government can require companies outside of the U.K. to intercept and hand over data. Fifteen Internet law experts argued in a letter that the U.K. power grab could introduce something entirely new. “DRIP attempts to extend the territorial reach of the British interception powers, expanding the U.K.’s ability to mandate the interception of communications content across the globe,” the experts argued. ”It introduces powers that are not only completely novel in the United Kingdom, they are some of the first of their kind globally.”

It’s possible the U.K. is seeking such an expansion in the wake of actions some companies — notably, U.S. telecom Verizon, which split from its British partner Vodaphone earlier this year — have taken that may put them beyond the reach of the U.K.’s intelligence wiretapping agency, GCHQ. It may be that the U.K., like the U.S., just doesn’t feel the need to respect international boundaries anymore.

Though it’s not as if either country was respecting boundaries in their intelligence collection; Snowden’s disclosures reveal the two countries, which partner closely on SIGINT, collect data from intercept points all over the globe.

It’s just now that both countries are publicly claiming they have the legal authority to do so, and do so for criminal purposes, not just intelligence ones.

DRIP will surely become law in the U.K., though it may be challenged at the EU again. It’s uncertain whether Microsoft will win its challenge in New York.

But the real question is how the rest of the world will respond to the claim — from both the United Kingdom and the United States — that they can legally grab content both at home and abroad.

Marcy Wheeler writes at EmptyWheel.net and is the author of "Anatomy of Deceit."

More Related Stories

Featured Slide Shows

  • Share on Twitter
  • Share on Facebook
  • 1 of 11
  • Close
  • Fullscreen
  • Thumbnails

    Ten spectacular graphic novels from 2014

    Beautiful Darkness by Fabien Vehlmann & Kerascoët
    Kerascoët's lovely, delicate pen-and-watercolor art -- all intricate botanicals, big eyes and flowing hair -- gives this fairy story a deceptively pretty finish. You find out quickly, however, that these are the heartless and heedless fairies of folk legend, not the sentimental sprites beloved by the Victorians and Disney fans. A host of tiny hominid creatures must learn to survive in the forest after fleeing their former home -- a little girl who lies dead in the woods. The main character, Aurora, tries to organize the group into a community, but most of her cohort is too capricious, lazy and selfish to participate for long. There's no real moral to this story, which is refreshing in itself, beyond the perpetual lessons that life is hard and you have to be careful whom you trust. Never has ugly truth been given a prettier face.

    Ten spectacular graphic novels from 2014

    Climate Changed: A Personal Journey Through the Science by Philippe Squarzoni
    Squarzoni is a French cartoonist who makes nonfiction graphic novels about contemporary issues and politics. While finishing up a book about France under Jacques Chirac, he realized that when it came to environmental policy, he didn't know what he was talking about. "Climate Changed" is the result of his efforts to understand what has been happening to the planet, a striking combination of memoir and data that ruminates on a notoriously elusive, difficult and even imponderable subject. Panels of talking heads dispensing information (or Squarzoni discussing the issues with his partner) are juxtaposed with detailed and meticulous yet lyrical scenes from the author's childhood, the countryside where he takes a holiday and a visit to New York. He uses his own unreachable past as a way to grasp the imminent transformation of the Earth. The result is both enlightening and unexpectedly moving.

    Ten spectacular graphic novels from 2014

    Here by Richard McGuire
    A six-page version of this innovative work by a regular contributor to the New Yorker first appeared in RAW magazine 25 years ago. Each two-page spread depicts a single place, sometimes occupied by a corner of a room, over the course of 4 billion years. The oldest image is a blur of pink and purple gases; others depict hazmat-suited explorers from 300 years in the future. Inset images show the changing decor and inhabitants of the house throughout its existence: family photos, quarrels, kids in Halloween costumes, a woman reading a book, a cat walking across the floor. The cumulative effect is serene and ravishing, an intimation of the immensity of time and the wonder embodied in the humblest things.

    Ten spectacular graphic novels from 2014

    Kill My Mother by Jules Feiffer
    The legendary Pulitzer Prize-winning cartoonist delivers his debut graphic novel at 85, a deliriously over-the-top blend of classic movie noir and melodrama that roams from chiaroscuro Bay City to Hollywood to a USO gig in the Pacific theater of World War II. There's a burnt-out drunk of a private eye, but the story is soon commandeered by a multigenerational collection of ferocious women, including a mysterious chanteuse who never speaks, a radio comedy writer who makes a childhood friend the butt of a hit series and a ruthless dame intent on making her whiny coward of a husband into a star. There are disguises, musical numbers and plenty of gunfights, but the drawing is the main attraction. Nobody convey's bodies in motion more thrillingly than Feiffer, whether they're dancing, running or duking it out. The kid has promise.

    Ten spectacular graphic novels from 2014

    The Motherless Oven by Rob Davis
    This is a weird one, but in the nervy surreal way that word-playful novels like "A Clockwork Orange" or "Ulysses" are weird. The main character, a teenage schoolboy named Scarper Lee, lives in a world where it rains knives and people make their own parents, contraptions that can be anything from a tiny figurine stashable in a pocket to biomorphic boiler-like entities that seem to have escaped from Dr. Seuss' nightmares. Their homes are crammed with gadgets they call gods and instead of TV they watch a hulu-hoop-size wheel of repeating images that changes with the day of the week. They also know their own "death day," and Scarper's is coming up fast. Maybe that's why he runs off with the new girl at school, a real troublemaker, and the obscurely dysfunctional Castro, whose mother is a cageful of talking parakeets. A solid towline of teenage angst holds this manically inventive vision together, and proves that some graphic novels can rival the text-only kind at their own game.

    Ten spectacular graphic novels from 2014

    NOBROW 9: It's Oh So Quiet
    For each issue, the anthology magazine put out by this adventurous U.K.-based publisher of independent graphic design, illustration and comics gives 45 artists a four-color palette and a theme. In the ninth issue, the theme is silence, and the results are magnificent and full of surprises. The comics, each told in images only, range from atmospheric to trippy to jokey to melancholy to epic to creepy. But the two-page illustrations are even more powerful, even if it's not always easy to see how they pertain to the overall concept of silence. Well, except perhaps for the fact that so many of them left me utterly dumbstruck with visual delight.

    Ten spectacular graphic novels from 2014

    Over Easy by Mimi Pond
    When Pond was a broke art student in the 1970s, she took a job at a neighborhood breakfast spot in Oakland, a place with good food, splendid coffee and an endlessly entertaining crew of short-order cooks, waitresses, dishwashers and regular customers. This graphic memoir, influenced by the work of Pond's friend, Alison Bechdel, captures the funky ethos of the time, when hippies, punks and disco aficionados mingled in a Bay Area at the height of its eccentricity. The staff of the Imperial Cafe were forever swapping wisecracks and hopping in and out of each other's beds, which makes them more or less like every restaurant team in history. There's an intoxicating esprit de corps to a well-run everyday joint like the Imperial Cafe, and never has the delight in being part of it been more winningly portrayed.

    Ten spectacular graphic novels from 2014

    The Shadow Hero by Gene Luen Yang and Sonny Liew
    You don't have to be a superhero fan to be utterly charmed by Yang and Liew's revival of a little-known character created in the 1940s by the cartoonist Chu Hing. This version of the Green Turtle, however, is rich in characterization, comedy and luscious period detail from the Chinatown of "San Incendio" (a ringer for San Francisco). Hank, son of a mild-mannered grocer, would like to follow in his father's footsteps, but his restless mother (the book's best character and drawn with masterful nuance by Liew) has other ideas after her thrilling encounter with a superhero. Yang's story effortlessly folds pathos into humor without stooping to either slapstick or cheap "darkness." This is that rare tribute that far surpasses the thing it celebrates.

    Ten spectacular graphic novels from 2014

    Shoplifter by Michael Cho
    Corinna Park, former English major, works, unhappily, in a Toronto advertising agency. When the dissatisfaction of the past five years begins to oppress her, she lets off steam by pilfering magazines from a local convenience store. Cho's moody character study is as much about city life as it is about Corinna. He depicts her falling asleep in front of the TV in her condo, brooding on the subway, roaming the crowded streets after a budding romance goes awry. Like a great short story, this is a simple tale of a young woman figuring out how to get her life back, but if feels as if it contains so much of contemporary existence -- its comforts, its loneliness, its self-deceptions -- suspended in wintery amber.

    Ten spectacular graphic novels from 2014

    Through the Woods by Emily Carroll
    This collection of archetypal horror, fairy and ghost stories, all about young girls, comes lushly decked in Carroll's inky black, snowy white and blood-scarlet art. A young bride hears her predecessor's bones singing from under the floorboards, two friends make the mistake of pretending to summon the spirits of the dead, a family of orphaned siblings disappears one by one into the winter nights. Carroll's color-saturated images can be jagged, ornate and gruesome, but she also knows how to chill with absence, shadows and a single staring eye. Literary readers who cherish the work of Kelly Link or the late Angela Carter's collection, "The Bloody Chamber," will adore the violent beauty on these pages.

  • Recent Slide Shows

Comments

Loading Comments...