With the flick of a finger, you can, if you wish, travel to France. Not physically, of course, but you can, from the comfort of your own home in America, watch a live-stream of events from Paris. If you read French you can peruse today's copy of Le Monde.
This is not unique to France, of course – the miracle of the cyber network is that it is equally true of nearly every nation on the globe. We are fast approaching a world in which, for information and data, no borders exist.
Unless, that is, we make a mistake. Unless we allow nations to re-erect borders in this borderless world and control the global flow of data, to the detriment of the freedom of information on which people have come to depend.
One can readily understand why authoritarian nations would favor such borders. Free flows of information foster the discovery of the truth – and for most authoritarian leaders the truth hurts. Whether it's the truth about how they are hiding money overseas or their abuse of their own citizens, the truth disrupts the status quo. Régime stability – maintaining the status quo – is a high priority for most authoritarians in power.
Sadly, however, today threats to the free flow of information across the globe come, not only from authoritarian countries but, also, from misguided actions of Western nations that ought to know better.
The latest example of this unfortunate trend is the U.S. government's effort to force Microsoft to provide it with data that Microsoft stored in a data center in Ireland. In December 2013, Microsoft received a warrant from a magistrate in the Southern District of New York directing the company to turn over content and non-content information relating to a user associated with the company's Dublin, Ireland data center. Microsoft produced the non-content material associated with the user stored on its U.S. servers, but objected to the order for content data stored in Ireland. The government's view was that the U.S. government can compel the company, a U.S. based cloud provider, to disclose a user's content data stored outside the United States.
Happily, that argument has not carried the day. The United States Court of Appeals for the Second Circuit recently issued a decision rejecting the government's request and allowing Microsoft to refuse to produce the data.
This is neither the time, nor the place, to review the legal merits of the decision which the government may yet appeal. The more salient problem is that the government's theory of the case is corrosive of a free and open internet.
First, under the government's theory companies may be subject to inconsistent application of law –companies would be faced with mandated disclosure or delivery requirements from one country that contravene non-disclosure laws of another. We should avoid what the Supreme Court has called "unintended clashes between our laws and those of other nations which could result in international discord."
Second, a rule that stops the U.S. government from acting overseas, paradoxically protects the privacy rights of Americans. If the U.S. government seeks access to overseas data, other governments will follow that example. We want our government to object when countries like Russia or China use their domestic process to get at the email of people and businesses here in the US.
Third, the administration's position fosters unilateralism – the assertion by a nation that its laws control, irrespective of other countervailing interests. Many nations are contemplating legal requirements that data about their own citizens – Germans , say – must be stored in Germany and subject only to German law. But that leads to fracturing the network.
In short, if the government had won it would have increased international confrontation at the cost of cooperation. This would have harmful effects on innovation, security, and economic development. Happily we've avoided this parade of horribles, at least for now – instead of walking blindly down a path toward a balkanized network where even friendly nations are at each other's metaphorical digital throats, the Second Circuit has put us on a path toward acceptance of a globalized borderless world.
What's next? It is time to call for a truce. A simple start would be a declaration of reciprocity – we won't unilaterally apply American law in your country if you agree not to apply your laws to data held in our country. That could be done administratively by the executive branch, or it could be a legislative enactment by Congress. Either way, the time is ripe to give serious consideration to the damage our government's position is doing to the ubiquity of the network. If we don't watch out, soon Paris may be as far away digitally as a Lindbergh cross-Atlantic flight – and that would be a shame.