Who Watches Out for Data Holders’ Privacy? : Comments Global Internet and Jurisdiction Project, October 14-16, Paris, France

It is not just data subject that needs protection from surveillance.  So is data holder.  Assume that I have my mother’s diary.  If the police search or seize my mother’s diary from me, it is not just my mother’s privacy affected there but also my own privacy.  Let say it is a email service provider, instead of me.  The provider is holding its customers’ data.  If a foreign government wants to search and seize on those data, it is also the provider’s confidentiality obligations to the customers that are affected.

So, who should approve such cross-border data access?  Well, if any government is taking away (1) data about me or (2) any data that I am holding close to my chest, whoseever data it is about, whatever that data subject’s nationality is, I will be hoping that someboy politically responsible to me will approve that surveillance because foreign officials have no reason to care for privacy of someone who does not vote form them, and does not vote for anybody who hires and pays them.   Now, if this mindset is to be respected, who should approve one government’s access to data stored in another country?  Answer:  Both the appropriate officials in the country of the data subject and those in the country of the data holder.

MLAT puts into effect this constitutional principle and should not be easily outflanked.

We should make distinction between making the internet global and the making data access and takedown global.  Internet is global already but what fragments the Internet is censorship and surveillance done by the legal regimes built upon it. Internet shutdowns, URL blocking, and all the surveillance that chills people’s desires to connect one another privately. This is what Jurgen Habermas would have called the colonization of lifeworld by a system, or as Jacques Lacan would have called, the Real being covered up by the Symbolic.

The way to keep the Internet global is to contain censorship and surveillance. MLAT is there for a deeply constitutional rule that requires some nexus between the warrant issuing official and the person being subjected to the search, not just between the official and the target but between the official and a company holding the data for the target. We should not talk about replacing that so easily with one global system. Transnational cooperation – more cooperation between — transparency reporting. We should not be focused too much in talking about taking down content and acquiring private data against the authors’ wishes or the data subjects’ wishes. this is not about keeping the Internet global, it is about making surveillance and takedown global, which is exactly the opposite of the Internet being global.  Let’s not float a balloon like at trade talks where the promise of one borderless market is used to justify all these protections for the move of capital from one country to other without addressing the protections for the cross-border movement of capital.  It is the movement of data we want to make global, not the reach of surveillance.