"War Crimes" against Privacy: The Jurisdiction of Data and International Law

By Morris, P. Sean | The Journal of High Technology Law, October 2016 | Go to article overview

"War Crimes" against Privacy: The Jurisdiction of Data and International Law


Morris, P. Sean, The Journal of High Technology Law


I. Introduction

Back in 1971, Arthur Miller in his classic text, The Assault on Privacy, warned that cybernetics instruments of mass surveillance posed "significant threats to personal freedom are presented by the inevitable linking of computers to existing surveillance devices for monitoring people and their communications." (1) Back then, when Miller penned his text, there was no Internet as we know it, and personal computers and networks were novelties, or they were in the process of emerging from the space program and related US Department of Defense programs. (2) There is no doubt that in these modern times, Miller has been vindicated, the moment the Internet became a reality, got commercialized in the late 1980s and then globalized by the early 1990s. (3)

There are several angles from which Miller's thesis could be developed; however, this article will turn the focus on digital jurisdiction and how laws covering data retention/data grabbing, electronic snooping laws, and even services agreements for commercial free products such as emails, are seen from the perspective of privacy and in the wider context of international law. (4) In this article, most of these laws will be referred to broadly as "information privacy laws." Another key concern discussed in this article is the global storage of private data such as email contents and other online "products" that individuals use, and whether such storage is beyond the reach of national governments. (5)

Harking back to Miller above, we must, turn our attention to some developments in a New York courtroom on April 25, 2014, when a magistrate judge ordered Microsoft Corporation to comply with a search warrant to disclose the private data relating to an email account being held on a server in Ireland. (6) According to the judge, the warrant "is a hybrid: part search warrant and part subpoena." (7) This decision was later upheld by a federal judge on July 31, 2014. (8) This example involving Microsoft and the U.S. government's attempt to obtain private data for one of Microsoft's user, whose data is located outside of the U.S. in Ireland develops some of the broader problems that faces international law. (9)

There are two key aspects of the case (a) whether Microsoft should comply with the search warrant to hand over data located overseas, and (b) whether U.S. laws should be given extraterritorial effect. (10) These two aspects raise questions regarding the reach of domestic laws and their effect on privacy and private data. (11) Most of the domestic laws concerned either give law enforcement agencies the power to retain or syphon (duplicate) individual online activities or access general data storage facilities such as those in financial transactions. (12) The question is how much legality exists in these practices within the context of international law. (13) In terms of the latter, consider financial databases such as the Society for Worldwide Interbank Financial Telecommunication (SWIFT) system (14) as examples of data that can be (un)lawfully accessed, and that any such access, is part of systematic effort to exert control over all forms of data that traverses the Internet. (15) The claim of "war crimes" against privacy in this article refers to those acts undertaken by governments to access private data of individuals in order to make allegations of criminal enterprising activities, and also the access to data by illegal methods. (16)

The term "data" is use broadly in this article, and sometimes refers to "personal data" including data of private individuals held on email servers; "corporate data;" and "non-corporate data," such as SWIFT, among others. (17) As such, this article focuses on how governments intercept private data and asks whether national information privacy laws should be applied extraterritorially in the absence of a global and standardized regime of international information privacy laws. (18) From this point of view, the article raises questions on the international nature of information privacy laws and suggests that questions pertaining to private data, under the circumstances discussed in the article, are no longer for national states, but are also a concern for international law and that bodies, such as the International Law Commission ("ILC"), should look into the relationship with data grabbing laws that are enacted quickly around the world. …

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