Rackspace Response to PRISM
From the point of view of any non-resident alien who has US cloud data, this is a <i>very</i> ponderable answer. We know what the Fourth Amendment says. The problem is that apparently (IANAL!) the US courts are upholding the idea that <i>the Fourth Amendment does not apply to the US-based cloud data of non-US-resident non-US-citizens</i>. I've heard a couple of people suggesting that this interpretation is based on the idea of border search, but that's neither here nor there: the upshot is that, unlike for example the US property of non-US-resident non-US-citizens, which is protected by the Takings Clause, the US cloud data of non-resident aliens seems to have no Constitutional protection. This seems to be the Constitutional foundation of FISA <a href="http://www.gpo.gov/fdsys/pkg/STATUTE-92/pdf/STATUTE-92-Pg1783.pdf" rel="nofollow">http://www.gpo.gov/fdsys/pkg/STATUTE-92/pdf/STATUTE-92-Pg178...</a> 702 <a href="http://www.govtrack.us/congress/bills/110/hr6304/text" rel="nofollow">http://www.govtrack.us/congress/bills/110/hr6304/text</a> , the law which allows the NSA to get Foreign Intelligence Surveillance Orders against non-resident aliens. <i>Absolutely the only thing</i> the government has to prove to the FISC court to get one of these orders is that the targets are (more likely than not!) non-resident aliens. No probable cause, no standard of suspicion for anything: the government doesn't even have to state its motivation. And the "Notwithstanding any other provision of law" language in 702 seems to sweep away any other statute law you (or Rackspace etc.) might want to use against the order. (Again IANAL.)<p>So how are we to interpret<p>"Based on our interpretation of the Fourth Amendment and ECPA, we are of the view that Rackspace is prohibited from accessing and turning over customer data stored on a customer’s server or other storage device in a U.S. data center without a properly issued, lawful request ( e.g. search warrants, court orders, Foreign Intelligence Surveillance Orders) from a U.S. court with appropriate jurisdiction over Rackspace and the data sought."<p>? Coming right after the recitation of the Fourth Amendment, this gives the impression that Rackspace will only hand out your data in response to a warrant (or warrant-like-thing) that demonstrates probable cause. But in fact, when the customer is a non-resident alien, the order is a FISA 702 order, and the court is the FISC, probable cause never comes into it: the US can (completely properly and lawfully!) get such an order for no stated reason at all. Imagine the following conversation in 1860:<p>Q: I hear that you have slaves on your Virginia cotton plantation. Is this really true?<p>A: The Fifth Amendment to the US Constitution states that 'No person shall [...] be deprived of life, liberty, or property, without due process of law'. No-one is forcibly detained on this plantation except fully in accordance with the law and the Fifth Amendment.<p>This answer seeks to suggest that the only prisoners on the plantation are convicted criminals, which is false - the plantation is worked by slaves. But in fact the answer is precisely true though devious: slaves have no rights under the law, while the Fifth Amendment does not apply to slaves. I really hope this isn't the correct way to interpret Rackspace's statement as well.