Disclosure : This blogger is hopping mad and this post is written in a state of fury . Readers beware !
Why is it so difficult for the United States to understand a simple principle – the laws of the United States apply to the geographical boundaries of the country. It does not apply globally. It certainly does not apply to me.
The trigger for this rant is the case between the US government and Microsoft that is now up before the US Supreme Court. The case involves the US government demanding that Microsoft give up emails of foreign citizens stored in its server in Ireland. Microsoft refused. Hence the case. As the case wound up through the layers of the US justice system, two lower courts ruled for the US government. However the Appeals Court in New York ruled with Microsoft. Now its in the Supreme Court.
The US government’s position is that Microsoft is a US company and therefore its laws apply worldwide – a notion that is seductive, but flawed. We’ve been there many times before. What is a “US Company” ? Is it because it is headquartered in the US ? If that is the logic, then its easy to beat it. My contract when I use Microsoft services can easily be modified to be with Microsoft India, an Indian company. That will make it outside the US jurisdiction.
Wait a minute, will say the US worthies. Microsoft India is a subsidiary of Microsoft US. So ultimately it is a US company. So, is beneficial ownership the norm ? That’s easy to refute too. Who are the shareholders of Microsoft US ? Bill Gates holds most of the shares but there are foreign entities as well. Take Citibank. The largest shareholder is the Emirate of Abu Dhabi. The second largest holder is Prince Alwaleed of Saudi Arabia. So , Citibank is an Arabian company subject to GCC laws ?
Complicating the matter is the obsolete US constitution. The constitution , which Americans swear by, is written in prehistoric times. They have a system where the constitution can never be amended. And they have packed the Supreme Court with “originalists” (RIP Antonin Scalia), who interpret the words literally. Nobody ever thought of globalisation and the Internet when the US constitution was written. The protection is only under the Fourth Amendment which relates to unreasonable searches and seizures.
The country actually most pissed off by all this is Germany which has strict privacy laws. The German Government has declared that if the US chooses to read every email and access every data, it will simply stop using “American” companies altogether.
Just because you can do something does not necessarily mean that its a good thing to do. Here is a poser to Americans. Consider a situation where E Bay is acquired by Jack Ma (an entirely plausible scenario). Alibaba is a Chinese company. So if the Chinese government decides to monitor every transaction on E Bay and required Alibaba to hand over all details to it. Would Americans take to that meekly ?
The right thing for America to do would be to execute treaties with other governments on data sharing and then operate under the framework. Sure, that’s difficult. But that is the right thing to do.
The US won’t do that of course. It has never done that. Principles of natural justice apply only when convenient. They poke their ugly noses into every aspect of my life – I am still signing the damned FATCA forms . I can only rant and rave. Hence the title of the post.
This post is being stored on a Google server in the US. Presumably this will be handed over to John F Smith II from Topeka, Kansas (the American equivalent of Ramamritham). I hope he can see my middle finger !