D Justhy

Cyber-Jurisdictions: The High Stakes of Data Privacy in The Digital Age

Our current legal system recognises “domestic” and “international” geographic jurisdictions. However, this does not seem to be helping technology firms and law makers agree on matters related to data access for legal proceedings.

The tech giant, Microsoft, which has 100 data centers in 40 countries, is the first American company to challenge a domestic search warrant seeking data held outside the United States.

The case began with a 2013 warrant obtained by prosecutors for emails of a drug trafficking suspect, whose emails were stored in Microsoft computer servers in Dublin.

Microsoft then challenged whether a domestic warrant covered data stored abroad. The Justice Department said because Microsoft is based in the United States, prosecutors were entitled to the data.

This case is a demonstration of governments having to stretch their jurisdiction boundaries, potentially risking the business interests of companies as well as creating tensions with the country governments where the technology footprints extend, as in the case of the data centre presence in Dublin, Ireland.

This major privacy rights fight between Microsoft and the Justice Department reached the U.S. Supreme Court in February 2018. The justices are considering whether U.S. law allows prosecutors to compel technology companies to hand over data stored overseas.

According to Reuters contribute report on CNBC, the nine justices will hear arguments in a case that pits the interests of technology companies and privacy advocates in safeguarding customer data against the demands of law enforcement in obtaining information crucial to criminal and counterterrorism investigations.

This case is likely to be a reference for other countries wrestling with similar concerns. The European Union is also watching this closely, as the GDPR date approaches rapidly. The case ruling is due by the end of June, 2018.

Earlier in 2016, a decision by the New York-based 2nd U.S. Court of Appeals favoured Microsoft with a marked victory for tech firms that increasingly offered cloud computing services in which data is stored remotely. However, President Donald Trump’s administration appealed that ruling to the Supreme Court.

If the US government’s reach were to extend to the data centres all around the world, the globally dominant U.S. based technology companies are likely to suffer, as customers will go to companies in other countries where they do not have to deal with this ‘hassle’.

This is similar to the U.S. government seeking the details of U.S. citizens in Swiss banks, for example. As a result, Swiss banks raised the entry barriers for American citizens seeking a Swiss bank account and in some cases, do not even entertain American citizens as customers.

Such an approach by any government, is likely to be a cause for international tensions.

If our world is to enjoy efficiency and growth gains offered through technological advancements, law makers and governments will need to re-think “jurisdictions” with due sensitivities.

Clearly, our current paradigm of physical jurisdictions in a digital world has its limits. It’s probably time to consider “cyber-jurisdictions.”