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This is great news (for consumers world-wide and for American companies). Bad for European companies which could have used this as a competitive advantage. As

This is great news (for consumers world-wide and for American companies). Bad for European companies which could have used this as a competitive advantage. As someone else said in this thread, it restores some sanity to US extraterritorial jurisdiction.

tzs 10y ago
> As someone else said in this thread, it restores some sanity to US extraterritorial jurisdiction. It doesn't seem that obviously sane to me, since it means we have a largely arbitrary distinction between electronic documents and physical documents. For instance, suppose you loaned me a valuable physical document of yours. I put it in a safe deposit box at a bank in the United States. You ask for the document back and I refuse. You could go to court and get a court order telling me to return the document to you. Now supposed instead I had put that document in a safe deposit box in a bank in Mexico. You would still be able to get a US court order telling me to return the document to you. To avoid contempt of court, I'd have to go to Mexico and retrieve the document. Yet this would not be seen as the US court trying to exercise extraterritorial jurisdiction over Mexico or Mexicans. Mexico has no problem with me going there and retrieving items from my safe deposit box [1]. It is irrelevant to them why I've decided to retrieve the document from my safe deposit box. We also have a kind of similar thing with money. If I owed you $1 million, and you sued to collect, a court might order me to transfer $1 million to you. If I had arranged things so all of my money was in a foreign bank account, and I only had a few thousand dollars worth of seizable assets in the US, the court could still order me to transfer the money from my foreign bank account, and that would not be seen as extraterritorial jurisdiction. If we make a slight change, so that I've lost the key to my safe deposit box and the bank is refusing to bypass this and open the box for me, and the court ordered the bank to open the box and turn over the document, then it would matter where the bank is located. If the bank was in the US, no problem. If the bank was in Mexico, then the US court attempting such an order would be attempting to exercise extraterritorial jurisdiction. The difference is that now they are trying to compel Mexicans to do something. OK, now let's switch to an electronic document. So instead of storing it in a safe deposit box in the above scenarios, I'm storing it on a server. Let's say I have servers in both the US and in other countries. When I store a document, I pick where to put it based on considerations such as available capacity at my various servers, network latency, storage cost, and other things like that. Assume I'm in the US, and I control all my servers from my office in the US. I can't see any reason to treat this different than the safe deposit box or money scenarios. Basically, if I have control over something and can legally move it around or transfer it, then a court that has personal jurisdiction over me ordering me to move that thing around or transfer it is just exercising its personal jurisdiction over me. It is not trying to exercise jurisdiction in or over the place where the thing resides. [1] well...I'm just assuming that foreigners are allowed to have safe deposit boxes in Mexican banks. If Mexico restricts foreign use of safe deposit boxes, pretend that instead of Mexico I picked some country that does allow foreigners to use safe deposit boxes.
- dsp1234 10y ago
  For instance, suppose you loaned me a valuable physical document of yours. I put it in a safe deposit box at a bank in the United States. You ask for the document back and I refuse. You could go to court and get a court order telling me to return the document to you. Now supposed instead I had put that document in a safe deposit box in a bank in Mexico. You would still be able to get a US court order telling me to return the document to you. To avoid contempt of court, I'd have to go to Mexico and retrieve the document. This case isn't about discovery, it's about search warrants. In the case of discovery, it's pretty established that a parent company is, generally, required to produce documents of a foreign subsidiary. The requirements for search warrants are different. Generally, search warrants are only valid for the jurisdiction in which the application comes from. In the case of documents/servers/safe deposit boxes/etc in Mexico, the US would not have jurisdiction, and would be required to gain the cooperation of Mexican law enforcement. This is why this case is even being heard. The US wanted to force Microsoft to allow a search of a foreign subsidiary's documents, knowing that the law enforcement of the country in question would never execute the search (since it's illegal in Ireland). Edit: A key difference between a search warrant and the discovery process is who the courts are ordering to take the action in question. "A search warrant is a court order that a magistrate, judge or Supreme Court official issues to authorize law enforcement officers to conduct a search of a person, location, or vehicle for evidence of a crime and to confiscate any evidence they find."[0]. Contrast that with "A motion to compel asks the court to order either the opposing party or a third party to take some action. This sort of motion most commonly deals with discovery disputes, when a party who has propounded discovery to either the opposing party or a third party believes that the discovery responses are insufficient."[1] In the search warrant case, the court is authorizing a law enforcement to take an action. In the motion to compel case, the court is ordering the non-compliant party to take an action. [0] - https://en.wikipedia.org/wiki/Search_warrant https://en.wikipedia.org/wiki/Search_warrant [1] - https://en.wikipedia.org/wiki/Motion_to_compel https://en.wikipedia.org/wiki/Motion_to_compel
  - cloudjacker 10y ago
    I honestly don't think I've ever seen or heard a legal analogy that was legally analogous at all.

tzs 10y ago

> As someone else said in this thread, it restores some sanity to US extraterritorial jurisdiction. It doesn't seem that obviously sane to me, since it means we have a largely arbitrary distinction between electronic documents and physical documents. For instance, suppose you loaned me a valuable physical document of yours. I put it in a safe deposit box at a bank in the United States. You ask for the document back and I refuse. You could go to court and get a court order telling me to return the document to you. Now supposed instead I had put that document in a safe deposit box in a bank in Mexico. You would still be able to get a US court order telling me to return the document to you. To avoid contempt of court, I'd have to go to Mexico and retrieve the document. Yet this would not be seen as the US court trying to exercise extraterritorial jurisdiction over Mexico or Mexicans. Mexico has no problem with me going there and retrieving items from my safe deposit box [1]. It is irrelevant to them why I've decided to retrieve the document from my safe deposit box. We also have a kind of similar thing with money. If I owed you $1 million, and you sued to collect, a court might order me to transfer $1 million to you. If I had arranged things so all of my money was in a foreign bank account, and I only had a few thousand dollars worth of seizable assets in the US, the court could still order me to transfer the money from my foreign bank account, and that would not be seen as extraterritorial jurisdiction. If we make a slight change, so that I've lost the key to my safe deposit box and the bank is refusing to bypass this and open the box for me, and the court ordered the bank to open the box and turn over the document, then it would matter where the bank is located. If the bank was in the US, no problem. If the bank was in Mexico, then the US court attempting such an order would be attempting to exercise extraterritorial jurisdiction. The difference is that now they are trying to compel Mexicans to do something. OK, now let's switch to an electronic document. So instead of storing it in a safe deposit box in the above scenarios, I'm storing it on a server. Let's say I have servers in both the US and in other countries. When I store a document, I pick where to put it based on considerations such as available capacity at my various servers, network latency, storage cost, and other things like that. Assume I'm in the US, and I control all my servers from my office in the US. I can't see any reason to treat this different than the safe deposit box or money scenarios. Basically, if I have control over something and can legally move it around or transfer it, then a court that has personal jurisdiction over me ordering me to move that thing around or transfer it is just exercising its personal jurisdiction over me. It is not trying to exercise jurisdiction in or over the place where the thing resides. [1] well...I'm just assuming that foreigners are allowed to have safe deposit boxes in Mexican banks. If Mexico restricts foreign use of safe deposit boxes, pretend that instead of Mexico I picked some country that does allow foreigners to use safe deposit boxes.

dsp1234 10y ago
For instance, suppose you loaned me a valuable physical document of yours. I put it in a safe deposit box at a bank in the United States. You ask for the document back and I refuse. You could go to court and get a court order telling me to return the document to you. Now supposed instead I had put that document in a safe deposit box in a bank in Mexico. You would still be able to get a US court order telling me to return the document to you. To avoid contempt of court, I'd have to go to Mexico and retrieve the document. This case isn't about discovery, it's about search warrants. In the case of discovery, it's pretty established that a parent company is, generally, required to produce documents of a foreign subsidiary. The requirements for search warrants are different. Generally, search warrants are only valid for the jurisdiction in which the application comes from. In the case of documents/servers/safe deposit boxes/etc in Mexico, the US would not have jurisdiction, and would be required to gain the cooperation of Mexican law enforcement. This is why this case is even being heard. The US wanted to force Microsoft to allow a search of a foreign subsidiary's documents, knowing that the law enforcement of the country in question would never execute the search (since it's illegal in Ireland). Edit: A key difference between a search warrant and the discovery process is who the courts are ordering to take the action in question. "A search warrant is a court order that a magistrate, judge or Supreme Court official issues to authorize law enforcement officers to conduct a search of a person, location, or vehicle for evidence of a crime and to confiscate any evidence they find."[0]. Contrast that with "A motion to compel asks the court to order either the opposing party or a third party to take some action. This sort of motion most commonly deals with discovery disputes, when a party who has propounded discovery to either the opposing party or a third party believes that the discovery responses are insufficient."[1] In the search warrant case, the court is authorizing a law enforcement to take an action. In the motion to compel case, the court is ordering the non-compliant party to take an action. [0] - https://en.wikipedia.org/wiki/Search_warrant https://en.wikipedia.org/wiki/Search_warrant [1] - https://en.wikipedia.org/wiki/Motion_to_compel https://en.wikipedia.org/wiki/Motion_to_compel
- cloudjacker 10y ago
  I honestly don't think I've ever seen or heard a legal analogy that was legally analogous at all.