America reacts to 9/11: Why I began investigating the Patriot Act

By | September 6, 2011, 6:55am PDT

Summary: A personal telling of my experience of September 11th, 2001, and the subsequent battle to unravel the post-9/11 Patriot Act’s reach to Europe and further afield.

September 11: Ten years afterIn this personal account, I reflect back ten years almost to the day, when the world changed as a result of the September 11th attacks. A month later, the USA PATRIOT Act was signed into law. A visit last year to the city which suffered the foulest of all terrorist attacks, opened my eyes to the Patriot Act and its reach to Europe and further afield.

11th September 2001 — Nottinghamshire, England

As I approached my family home as I returned from school, my mother stood at the door with a red, puffy face. She had been crying.

I was two weeks away from turning thirteen years old. A split second of inconceivable thought crossed my mind. I thought my father had died.

She told me to come into the house and told me: “America is under attack.”=. The BBC had interrupted its broadcast stream — something I vaguely remembered happening a few years before — when I was much younger, as I was watching cartoons in the living room. Princess Diana had died, and “all programming was suspended.”

I saw footage of a plane gliding through the sky, before it exploded upon impact between these two large, unidentifiable buildings. I had no idea what the World Trade Center was, but knew that the Twin Towers — something covered in school only a week before — were one of the largest buildings in the world.

It was around 3:40pm in north Nottinghamshire, England. I had just finished school for the day. By this point, it was approaching 11am in New York City. The towers had already collapsed. Thousands were dead, in the less than ten seconds it took for the towers to crumble to the ground.

I stood there, gazing at the television, with only one thought crossing my mind. At that point, I murmured: “This will bring us to World War 3, won’t it, mum?”

A world without Facebook, or Twitter, and barely mobile phones — the technology that we now take for granted was a world away. New York City to me was a world away. The events that day, to the people in Manhattan, were a world away from what they were used to.

The world changed in the space of three hours.

10th June 2010 — New York City, United States

I sat in a bar just off East 30th Street with my colleague Mary Jo Foley, and a mutual friend, Jon Honeyball, contributing editor to PC Pro.

Many discussions were banded around, and laughs were had by both. As we shared bread and olives, something Jon said pricked my ears.

“Say you have a student at college, who has an Arabic name. Sure, he is born in England and has a UK passport and nationality, but his parents are Iranian”.

“The student goes on holiday to Florida to visit Disneyland. But he gets detained at immigration, without warning or even suspicion. He doesn’t know why he is stopped, and nobody tells him why”.

“He is doing research into statistical modelling of nuclear reactions and is co-funded by a public sector organisation, run by a branch of the UK’s chief laboratory”, he added.

“But the U.S. decides, wrongly, that he is hostile and of interest.”

In a post-9/11 world, we hear stories of law enforcement’s institutional racism and ethnic profiling at airports. Whether it truly exists, we have no way of truly knowing.

“The U.S. government can wave the Patriot Act legislation at Microsoft, a U.S. headquartered company, which handles the email of that students’ college. Microsoft hands it over, but is gagged from telling the college that this is happened.”

I was still unclear of the implications. This was the first time I heard of the Patriot Act — the U.S. counter-terrorism legislation that was brought in a month after the September 11th attacks. A political ‘martial law’, I believed.

He went on.

I had to go outside for a cigarette.

This naive, young columnist had never even considered that a law from another government could infringe the rights of a foreign national in this way.

I made Honeyball a promise, that I would investigate this until I was done. I left that evening feeling empowered but equally disheartened. I could not believe that governments could force companies like Microsoft, Google and other cloud-service providers to act in this way.

Honeyball pointed me in the right direction. He had covered this extensively before, and had heated discussions and conversations with many about this. But while he and so many others suspected foul play, it was all but impossible to prove.

17th June 2010 — Canterbury, England

After one long week of sleepless nights, and a throbbing ’stress vein’ under my left eye, I found a crucial discrepancy between two statements.

Microsoft — for which I had a good working relationship with — was the focus of my investigation. My college around the same time, the University of Kent, had announced that it was switching to Microsoft’s Live@edu service — the outsourced communications platform, now known as Office 365.

I had a source. This person has the highest level of trust possible in my books. I trusted everything that this person said, because they had laid down their career, their financial security and potentially their freedom, to disclose something extremely damaging to the global cloud industry.

This person handed me a document, which offered a discrepancy between what Microsoft was publicly saying, and what it knew about the Patriot Act and gagging orders, known as National Security Letters.

Concerned initially for my university, my colleagues and friends I studied with, and my own personal data security, regarding my institution’s imminent contract signing with Microsoft’s UK subsidiary, I acted probably before I should have.

I presented this to Julia Goodfellow, vice-chancellor at the University of Kent, who all but dismissed my claims, stating that “Safe Harbor is enough to protect our data.” Whether I had not explained it as well as I could have done, only a week after discovering the initial issue — or whether her institution, already suffering at the helm of a global recession, could simply afford to ignore this student for the sake of financial security — I did not know.

I begged her not to sign the contract. Two months later, our email had been outsourced, and immediately put 19,000 students at my university at risk from interception by U.S. authorities. Considering we are an international university, with a good chunk of students studying from the Middle East, who knows what repercussions they could face.

A few days after, I received “assurances” from the director of IT services at my university following my meeting with the university chief, stating that the lawyers had explored all avenues in relation to data protection and European data laws.

But I was not convinced. My source already gave me enough evidence for me to pursue this until the bitter end.

Next page: What the source led me to »

Topics

Zack Whittaker, a criminologist who studied at the University of Kent, Canterbury, is a journalist, writer and broadcaster.

Disclosure

Zack Whittaker

I worked briefly with Microsoft UK in 2006 but no longer have any connection with the company. Regardless, I remain impartial and unbiased in my views.

I don't hold any stock or shares, investments or industrial secrets in any company, but have signed confidentiality agreements with a number of UK and U.S. organisations, whose names I am not at liberty to disclose.

I was involved with Kent Union, the University of Kent's student union, undertaking voluntary, non-salaried, elected positions between early 2009 and mid-2010.

No other company, body, government department, non-governmental organisation or third sector organisation employs me or pays me a salary in any capacity whatsoever.

As a freelance journalist, whenever expenses are given and taken by a company that is not CBS Interactive, these will be disclosed in each relevant post to ensure transparency.

I currently work with a UK law enforcement unit, but this is an entirely separate position which bears no connection to other work.

(Updated: 23rd October 2011)

Biography

Zack Whittaker

Zack Whittaker, criminologist who studied at the University of Kent, UK, is a journalist, writer and broadcaster.

After studying criminology at university, though still in his early-20's, he has already had a series unconventional work and voluntary positions. He has worked with researchers studying neurological illnesses like Tourette's syndrome (which he suffers from), has given lectures on the nature of disabilities in the public community, and occasionally ends up speaking on television and radio discussing the events of the day.

He first had academic work published at the age of 22, then still an undergraduate, and has been cited by a wide range of publications: from the Huffington Post, Business Insider, AllThingsDigital, The Atlantic Wire and CBS News.

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RE: America reacts to 9/11: Why I began investigating the Patriot Act
redking44 12th Dec
Sounds like he patriot act would justify banning all US companies from the rest of the world
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Message has been deleted.
bmeacham98@... Updated - 6th Sep
You are at greater risk of having your information illegally purloined by wikileaks activists than lawfully gathered by any provision of the Patriot Act.
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Maybe so, but...
John L. Ries Updated - 6th Sep
@facebook@...
...if my country needs my data, my preference would be for a uniformed deputy US Marshal to come to my door with a search warrant. I would then *voluntarily* hand over everything listed in the warrant while the Marshal watched me get it.

That probably makes me old fashioned, but that's the contract. Having my ISP hand my data over in secret is, to me, unacceptable, so I'll minimize what I keep on line, thank you.
I live in Canada and work for a Canadian company. Our web services provider was bought out by an American company. Because of your series, we switched to a Canadian-owned provider in Canada. We don't feel we have anything worth hiding, but it was very much the principle of it all.

Thank you for all of your hard work.
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If you are that upset that a US based company is putting US law about EU law, especially when there are criminal sanctions on the line, then nothing is stopping you from creating an EU based cloud provider. Of course it sounds like that the author would still be upset even if a court issued a warrant. The fact of the matter is, either through chance or better regulatory environment, all of the major cloud providers are US based.
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Depends on the court..
daftkey 6th Sep
@thomasa@...

If it was a US court which issued an order to turn over his data, which resides on a server outside the US, controlled by a company outside the US, and the provider complied, he would have every reason to be upset.

The US courts and US law does not should not have any jurisdiction outside the US. Period.

Even if the cloud provider is a subsidiary of a US-based company, if the data is housed outside the US, and the subsidiary operates outside the US and provides services to non-US residents, then the Patriot Act should have no effect - there'd be no legal reason that the subsidiary should have to hand over the data, and I would bet there would be a legal challange waiting for any cloud provider who did.
@daftkey .. There is a different story at play if the sub is simply an extension of a US-based corporation - they wouldn't be fully independent.

What I'm referring to here is a subsidiary which is set up as a corporation and registered in another country, whose major shareholder just happens to be the US-based parent.
@daftkey
...then they should be immune to search warrants issued by any state in which they do business (including the one that issued its charter), except for Monaco?

Can you say "flag of convenience?" I knew you could!
@daftkey

Depending on the relationship between the corporation and Monaco and the US parent. If the US parent is simply a shareholder, and the Monaco corporation is otherwise an independent entity which operates, is managed, and does business outside the US, then yes, it should be immune to US law, and all other laws in areas where it doesn't have any reach.

To make it more relevant to the current topic, if Microsoft spins off an independent "Office 365 Europe inc.", remains its sole shareholder, but otherwise builds a head office in Brussels, builds a data centre in London, and excludes US customers from its services, the Patriot Act should have no bearing on it whatsoever.

I understand this would create, as you call, a "flag of convenience" scenario, but moving operations outside a country in order to avoid that country's laws is hardly a new thing (wonder why we import so many goods from China which are otherwise "American" brands?)
@daftkey

"I understand this would create, as you call, a "flag of convenience" scenario, but moving operations outside a country in order to avoid that country's laws is hardly a new thing "

OK, so you acknowledge that nations have laws already on the books for the very things that the Patriot Act does not even create - but extends. This ensures that Nazis do not keep the jews gold and US billionaires can no longer hide money in Switzerland.

You have the right to find a rogue safe haven nation for your data -- such as Righthaven. However, just as Righthaven was treated as a pariah nation and functionally disconnected from the rest of the world by ISPs, so too would such a nation state that thinks it cannot cooperate with its fellow nations.
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Since you're talking "should"...
John L. Ries 7th Sep
@daftkey
...if you were "World Emperor" for a day, what principle would you write into international law to cover the case? And how would you prevent it from interfering with legitimate law enforcement efforts?

Your existing response covers how you think corporations should be able to evade laws they find obnoxious, which really isn't the same thing.
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@John L. Ries and @Facebook..

OK, so you acknowledge that nations have laws already on the books for the very things that the Patriot Act does not even create - but extends. This ensures that Nazis do not keep the jews gold and US billionaires can no longer hide money in Switzerland.

I will ackowledge this, yes, and I'm in agreeance that nations should and do cooperate with each other, just for the reasons you've mentioned. But you're still talking about a nation enforcing its own laws, and making those laws line up with the laws of other nations with which they are cooperating.

I'm talking more about the heart of Zach's concerns with the Patriot Act (a US law, not an English law) and its reach outside of US borders, and it's effect on non-US citizens.

For instance, in Canada, we have an act similar to the Patriot Act, however it is not nearly as far-reaching, and much of it is balanced by rights granted by a previous legislation (Freedom of Information and Privacy). A Patriot-Act type of data request wouldn't fly if it were handed to a Canadian corporation, as it violates Canadian law.

The "Should" that I mention is this scenario - Microsoft has a data centre in Toronto, run by "Microsoft Canada" which is a Canadian corporation, owned by Microsoft Corporation. In all legal respects, it is a Canadian entity. If Microsoft is handed a request for data citing the Patriot Act, and it hands over data from a Canadian customer, residing in their Canadian data centre owned by Microsoft Canada, that customer "should" have recourse against MS Canada within the bounds of Canadian law.

As seems to be the case now (and where Zack is most concerned), is that Microsoft can now "hide behind" the Patriot Act as a reason for handing over that data. This should not be possible in any country other than the US.
@John L. Ries

...if you were "World Emperor" for a day, what principle would you write into international law to cover the case? And how would you prevent it from interfering with legitimate law enforcement efforts?

Your existing response covers how you think corporations should be able to evade laws they find obnoxious, which really isn't the same thing.

It's funny that you'd ask what I would do if I was "world emporer" because the point I'm trying to get accross is that this is the situation I would most like to avoid.

Read my post above for a bit more information, but in a nutshell, my answer is that the law enforcement of one country has jurisdiction *in that country*. Outside of that country, they have to rely on the laws and enforcement agencies of whatever other country they are dealing with.

I use Corporations as the example because the corporate structure is really where this all becomes a problem. It's easy to say "if you're a person living in England, then I'm obviously subject to English law". Corporations are a bit different in that they are still independent entities and subject to the laws for the countries in which they do business, which in itself I'm not really all too concerned about (neither are you, apparently). But as a "CUSTOMER" of these corporations, I am all of a sudden exposed to laws in a country for which I've never lived, visited, or even intend to in the future.
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Great work Zack. La ringrazio per i vostri sforzi illuminare le persone.
@mario@... Thankyou for the lovely words. Means a lot.
At the time it was passed I thought the Patriot Act was a stupid idea with a weaselly name (it's high school level acronym actually -- look it up). Nearly 10 years later I now think I was too kind in my description of it back then. Law enforcement may like it, but that's because the Act let's them take shortcuts, i.e., be lazy about minding the Bill of Rights and personal privacy; however, as far as I can see, the exact same results can be achieved with old fashioned, straight-up investigation and heads up police work. Yeah, that takes more effort because of all those darn Constitutional protections you have to take in account, but....the people who wrote the Constitution got to that point by having to deal with a much greater threat than 19 suicidal religious zealots.

The argument that things are somehow more dangerous in these times than when this country's founding fathers rebelled against what was at the time the most powerful nation on Earth was, is, and will always be disingenuously stupid. People with weak ideals and weaker convictions will always find excuses to do bad things or to allow others to do bad things.
Sounds like he patriot act would justify banning all US companies from the rest of the world

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