
Microsoft calls for dismissal of U.S. Supreme Court privacy fight - djacobs
https://www.reuters.com/article/us-usa-court-microsoft/microsoft-calls-for-dismissal-of-u-s-supreme-court-privacy-fight-idUSKCN1HA2KH
======
craigc
It is really sad and disturbing to me how little coverage the CLOUD act has
gotten. A law was passed quietly that was snuck into page 2,201 of an
unrelated spending/budget bill just before Congress voted on it to allow
warrantless surveillance by foreign governments and law enforcement on any US
citizen, and not one mainstream media source has written about it. It was
signed into law by Trump just a couple days later without a single hearing or
debate in Congress.

Please read:

\-
[https://www.theregister.co.uk/2018/03/23/cloud_act_spending_...](https://www.theregister.co.uk/2018/03/23/cloud_act_spending_bill/)

\- [https://www.eff.org/deeplinks/2018/03/responsibility-
deflect...](https://www.eff.org/deeplinks/2018/03/responsibility-deflected-
cloud-act-passes)

I personally believe the Facebook “scandal” is/was a smoke screen to draw the
media attention away from this (4 or 5 year old scandal with regards to data
collected for the Government to begin with). No private information was leaked
(private messages, chats, etc) from Facebook as far as I am aware. I am not
saying Facebook is innocent here – they are far from it, but I can’t stop
thinking that the timing is too convenient and too much of a coincidence. Also
recall that Zuckerberg liquidated around $500 million of Facebook stock in
February.

All of the major tech companies (Apple, Google, Facebook, Microsoft, etc) co-
authored a letter supporting this legislation saying that it represents
“notable progress to protect consumers’ rights.” despite the fact that it does
the exact opposite. I think it will save them money from drawn out legal
battles, legal fees, and the possibility of having to build additional data
centers in other countries/continents to replicate and provide access to
customer’s data for law enforcement agencies.

The CLOUD act allows access to ANY data including emails, private messages,
etc. without requiring a warrant or having to inform the person that it is
being collected. It gives additional power to the executive branch as the
attorney general and certain members of the cabinet can access data on
unsuspecting individuals without having to notify Congress or the Judicial
branch. Also data collected from another party interacting with someone else
could be used to criminally prosecute them even if they were not under any
suspicion or investigation to begin with.

~~~
tdhoot
> warrantless surveillance by foreign governments and law enforcement on any
> US citizen

Source? I only see that it allows foreign governments to get information on
their own citizens, even if that information is stored on US soil.

~~~
tsmarsh
It’s edge cases like this that make me wonder about the whole concept of
nations.

It makes citizens sound like property / cattle.

“I believe my cow pooped on your lawn. I demand the right to inspect your lawn
for my cows poop to retrieve the poop. Expect further consultation if we
decide you illegally benefited from that poop. I don’t care that you are ok
with the poop or that the cow came to your lawn and pooped there of its own
valition. In Cowville pooping outside of your allotted pen is illegal.”

Of course when you take that argument to its logical conclusion I may find
that I’ve just argued for a firewall / vetting system that would prevent data
leaving the national networks ‘illegally’. Maybe I am. Or maybe I’m arguing
the other way, that national borders make less sense than ever and freedom of
people, ideas and data requires a completely different take on national
soverignty.

~~~
vinceguidry
> It makes citizens sound like property / cattle.

This is, precisely, how polities have always worked. Personal freedom of
movement is circumscribed to lawfully prescribed means. It wasn't until after
WW2 and airplanes when ordinary people gained the technical capability to move
around. Before then, you had to have lots of money and time to travel. Serfs
were considered part of the land, they needed permission to leave.

With the Renaissance came the loosening of identification from commoners being
a part of the land, to being a part of the city / political region. The
concept of people as property never really changed and is intrinsic to the
idea of governance, which imposes rules that people must live by, and
specifies what kinds of commerce can go on. Citizenship is just the loosening
of who owns you from your city to your nation.

Things are changing, quite rapidly, but don't expect the idea of people as
_belonging_ to a polity to ever really go away. Governments require tax
revenue to operate, and governments that don't have to rely on their citizens
for those taxes are governments that don't have to be held accountable to
those citizens. (See Russia) Your government is always going to treat you like
a belonging, and demand the right to use your efforts for the good of the
nation however it sees fit.

~~~
vanderZwan
> _This is, precisely, how polities have always worked. Personal freedom of
> movement is circumscribed to lawfully prescribed means. It wasn 't until
> after WW2 and airplanes when ordinary people gained the technical capability
> to move around. Before then, you had to have lots of money and time to
> travel. Serfs were considered part of the land, they needed permission to
> leave._

[Citation needed]

From what I have been taught by friends of mine who studied International
Migration & Ethnic Relations, people moved around a lot more freely before the
nation state came into existence than they do now, because _there were no
borders to keep them out_.

~~~
Maybestring
What time period is that? I'm not sure what historians consider the first
nation state.

~~~
chimeracoder
> What time period is that? I'm not sure what historians consider the first
> nation state.

There's disagreement about this, but the contemporary concept of the nation-
state is believed to have merged between the 17th and 19th centuries. 1648 is
usually given as the earliest date, though that's partly out of a desire to
ascribe a specific year to what was actually a slow process.

------
mtgx
I was afraid this was going to happen, after Microsoft became one of the
primary supporters of the CLOUD Act recently.

[https://blogs.microsoft.com/on-the-
issues/2018/03/21/microso...](https://blogs.microsoft.com/on-the-
issues/2018/03/21/microsoft-statement-on-the-inclusion-of-the-cloud-act-in-
the-omnibus-funding-bill/)

It's also the _second time_ in the last few months that Microsoft has settled
with the government instead of pushing forward the privacy fight. The
government pinky-promised that it wouldn't abuse the gag orders anymore, and
that's all it took for Microsoft to give up:

[https://blogs.microsoft.com/on-the-issues/2017/10/23/doj-
act...](https://blogs.microsoft.com/on-the-issues/2017/10/23/doj-acts-curb-
overuse-secrecy-orders-now-congress-turn/)

It was starting to look like Microsoft's Chief Legal Officer Brad Smith was
starting to care a bit about privacy with all the things he was proposing
(like the Digital Geneva Convention) and these recent lawsuits he pushed the
company to start against the government. But it looks like that fight was very
short-lived and the pro-surveillance people in the company (Nadella, probably,
going by how they implemented law enforcement's whole wishlist into Windows
10) won that debate.

So I guess we can no longer trust Microsoft to fight for privacy at all
anymore. And with the CLOUD Act, nobody should trust any US-based company
anymore anyway.

~~~
da_chicken
This isn't Microsoft's fault. Don't blame Microsoft because they're unwilling
to continue a case which what just rendered moot.

The law changed and the case now lacks merit. The legal question at issue in
the SCotUS case can't magically include the CLOUD Act. That's not how the
courts work. Microsoft will have to start over and file complaints against
data requests under the CLOUD Act, but since that involves a different
question of law this case before SCotUS is moot. Regardless of the decision in
this case, the Federal government could just make another request under the
CLOUD Act.

------
rgbrenner
no mention of the law in the article. CLOUD Act:

[https://en.wikipedia.org/wiki/CLOUD_Act](https://en.wikipedia.org/wiki/CLOUD_Act)

[https://www.eff.org/deeplinks/2018/03/responsibility-
deflect...](https://www.eff.org/deeplinks/2018/03/responsibility-deflected-
cloud-act-passes)

The bill (passed as part of the spending bill a week ago):

[https://www.congress.gov/bill/115th-congress/house-
bill/4943](https://www.congress.gov/bill/115th-congress/house-bill/4943)

------
strstr
Just going to give a shout out to the openness of the Supreme Court oral
arguments. You can find them directly from the Supreme Court
([https://www.supremecourt.gov/oral_arguments/argument_audio/2...](https://www.supremecourt.gov/oral_arguments/argument_audio/2017))
or in Podcast form ([https://itunes.apple.com/us/podcast/u-s-supreme-court-
oral-a...](https://itunes.apple.com/us/podcast/u-s-supreme-court-oral-
arguments/id1048210550?mt=2)).

First Mondays ([http://www.firstmondays.fm](http://www.firstmondays.fm)) did
an interview with Microsoft's Chief Legal Officer about the Supreme Court case
and the CLOUD Act.

The combination of these sources made both the CLOUD Act and this call for
dismissal somewhat unsurprising. It was pretty clear that the Supreme Court
wanted congress to clarify the now antiquated Stored Communications Act.

~~~
perpetualpatzer
Agree that this isn't as surprising or impactful as others are reporting and
strongly second your audio recommendations.

For the oral arguments, check out Oyez
([https://www.oyez.org](https://www.oyez.org)). I like it much better because
it:

* has argument audio from cases going back 50+ years (as compared to 8 yrs on scotus.gov), so you can listen to big cases from before 2010 (e.g. Citizens United), and when modern cases draw heavily on prior decisions, you can go back and listen to the reasoning in the previous case (e.g. Vieth for Gill/Benisek, Bakke for Fisher).

* has the audio synced to the court transcript, which helps identify voices and follow when there's poor audio quality.

* has audio of opinion announcements when they're given (so you know the outcome and reasoning of the decision without looking it up)

* lets you sort by popularity, which makes it easier to find the cases that are important and interesting rather than merely politically charged.

------
olympus
While the new law isn't the best, this particular course of action based on
the law seems completely reasonable.

New law -> new warrant -> no reason to continue wasting government $$ on
fighting a court case that now has federal law clarifying the issues.
Microsoft gets to save some money as well.

~~~
gm-conspiracy
No warrant needed now. That is part of the problem

~~~
olympus
The article specifically says the Justice department is dripping the case
because they have a new warrant and Microsoft is complying.

~~~
nareiber
They want a warrant for Microsofts data. The warrant comment is probably aimed
at US citizens data on a third parties servers.

EFF explicitly says the Cloud Act enables: 'Empower U.S. police to grab any
data, regardless if it's a U.S. person's or not, no matter where it is
stored.'

------
jfoutz
So, if I’m following the cloud act, it sounds like I could find an officer
(anywhere in the world) that needs $500 and in exchange get everything stored
by Google and Facebook for a specific person.

I have no need for such a thing. However it’s not hard to imagine drug cartels
or similar organizations using this right away.

Pretty exciting new feature. Surprised they buried it in the patch notes.

------
kerng
In many ways this case isn't settled until the foreign stakeholders agree with
it also, or? I mean Ireland can still force Microsoft to not hand over the
data because its on their soil? Or because its digital law makers assume the
data is already in US. Doesn't this need agreements between countries? Anyone
know more, I'm not super savvy on that topic.

------
justinclift
Fairly unfortunate (mind understatement). Especially for the US Corp which
_literally_ added mandatory uploading and sharing of random end user docs to
Win 10.

Hopefully this starts the ball rolling on Windows being completely
unacceptable for use by all non-US goverments and business. Giving your docs
to an unfriendly foreign state isn't cool. ;)

~~~
jstanley
> added mandatory uploading and sharing of random end user docs to Win 10.

What does this mean?

Does Windows 10 automatically upload randomly-selected Word documents to
Microsoft? Or something else?

~~~
justinclift
Windows 10 is known to upload random end user docs to Microsoft. For example,
if a computer with Win10 on it crashes / has some level of fault (etc), it can
upload docs it determines are related to MS (to assist diagnosis).

To bad if those docs happen to be medical records - or anything else
sensitive. :(

Note - that's just one example. Win 10 really is a privacy shit show.

~~~
mercer
Can this functionality be turned off?

~~~
contextfree
Yes, it's determined by whether the diagnostic data setting is at Full or at
Basic. This is presented as a toggle in the initial OS install setup dialog
and can be changed later in Settings->Privacy->Feedback & diagnostics. The
only change to this since the initial version of Windows 10 (besides reducing
the data collected at Basic level to comply with European law and regulations)
was that the third, intermediate Enhanced level can no longer be set through
the UI (it still exists as an enterprise configuration option) since the
Creators Update release in spring 2017.

There is more detailed information here: [https://docs.microsoft.com/en-
us/windows/configuration/confi...](https://docs.microsoft.com/en-
us/windows/configuration/configure-windows-diagnostic-data-in-your-
organization)

~~~
justinclift
> Yes, it's determined by whether the diagnostic data setting is at Full or at
> Basic.

"Basic" does _not_ mean off. So please don't claim that's a "yes" when it's
clearly not.

~~~
contextfree
Yes, it prevents the scenario (user content files being included in diagnostic
data) that you'd written about, and that the question was about. It doesn't
turn off all diagnostic data, but that wasn't the question.

------
sbov
Why does this sort of thing not require an amendment to the constitution?

~~~
PurpleBoxDragon
Because the current 9 people, who are not at all in touch with either the
original writers or the current population, get total say in what the
Constitution actually says. It is just like the rulings that allowed obscenity
exception to the first amendment, a fully automatic exception to the second
amendment, or for the commerce clause to apply to a person growing food for
their own animals to eat,

Now, maybe in this case the 9 will claim it does require an amendment, but so
many current exceptions and weird interpretations have been allowed that I
can't have faith in the decisions of the 9.

~~~
liberte82
Anyone could make your argument about any Supreme Court that has ever existed
or will exist, when they don't agree with the decisions being made. What are
you proposing exactly?

~~~
PurpleBoxDragon
You could make this argument about not just any Supreme Court case, but about
any law that exists. Someone or some group has to be the authority on
interpreting any given law, and if they interpret a law that says "X is
allowed" to mean "X is banned", then that is in their power to do so. Ideally
when their interpretation becomes some blatantly against the will of the
people, the people need to take action. In the case of the US, we need
amendments to clarify things.

But so far this hasn't really been against the will of the people. So many
wanted some level of obscenity ban. So many want some level of gun
restrictions. And so many are willing to give up their privacy because of the
promises made by those in power of the safety they will receive in turn.
Sometimes when people play with fire, they aren't going to learn a lesson
until they are burned, and there is nothing we can do other than try to
protect ourselves from the blaze.

We have enough people right now wanting to restrict rights for promises of
safety (even when those promises are not delivered on) that I'm not sure what
we can do in the US. More education on reasons why one should not trust an all
powerful authority, but we have plenty of evidence that teaching someone
something is bad for them might do nothing to stop them from doing it anyways.

