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Posted on June 12, 2014 by Ruth O’Brien

You’ve got to be kidding me.  Just when I was thinking of going offshore to Norway (Runbox),  the Gaggle — Google, Amazon, Microsoft, and Yahoo — compounded by the American government’s labored reasoning, convinced me “not so fast.”  I’d better slow down in deciding where to store my data.

Jeesh.  Each and every citizen needs a Ph.D. in data as well as civil liberties. The one thing we know for sure is that it’s complicated to even figure out what side you’re on.  There are too many sides.  And here’s the thing: The Gaggle of data-proprietary capitalists are also scaring the beejeevies out of Europe — the EU, which is very pro-EU business, too.

So how can we even locate our self-interest if we can’t sort it out with not two, nor three, but four to five contenders as to who you are going to trust with your data.

Side 1: American proprietary-information barons

Side 2: American government

Side 3: EU — pro-EU business and the large member nations, particularly Angela Merkel’s Germany

Side 4: What about Russia and China — the common threat to (yes, you’ve got it) both the U.S. and the EU

Putting all four sides aside, here’s how you have to look at it.  What are we talking about protecting when we think of the private sphere, anyway?  As Electronic Frontier Foundation (EFF) lawyer Lee Tien said, “United States search warrants do not have extraterritorial reach,” so “the government is trying to do an end run.”

Microsoft agrees.   If the judicial order to surrender email stored abroad is upheldMicrosoft said, it “would violate international law and treaties, and reduce the privacy protection of everyone on the planet.”  Verizon filed a brief reflecting this view too.

Meanwhile, the Times reported that “European officials have expressed alarm.”  Alarm!? That’s a big word for the EU, if you haven’t been following the information trade wars.

New York federal judge James C. Francis made a ruling in April creating a grey zone, or — in Obamese — a hybrid.  The difference lies in the fact that there are two distinct types of investigative tools pertaining to communications — subpoenas vs. searches.

First, there is a subpoena, which is not that powerful, since information is limited to what is “relevant” in an ongoing investigation, and the person being investigated must be notified.

And second, there is a search warrant that allows for jurisdiction — virtual or physical — and, once in the door (or the back door of a router), the state can root around.  So what would you prefer?  The federal government favors a subpoena, whereas the Gaggle wants to limit the search.

Trying to find that middle, or what could be no-man’s-land, and therefore even more treacherous ground, Judge Francis held that the 1986 Electronic Communications Privacy Act gave the federal government power and authority to protect American individuals from “indiscriminate data gathering that subpoenas might allow of online communications.”

What we know is as Obama is not going to let go of his hybrid.  The communication industry’s idea that you can differentiate between physical search warrants and digital ones as “misguided” said U.S. Attorney Preet Bharara of the Southern District of New York “. . . Storing the data abroad” is not going to mean they don’t have to follow American laws.

Stay tuned for both the post-Snowden state’s or put simply the Obama administration’s arguments and the Gaggle’s arguments before Judge Loretta A. Preska on July 31.  Whose side will the American judiciary be on this time?