Europe's Largest Internet Exchange Decides To Open US Office, Risks Making Itself Subject To NSA Demands

from the and-that's-a-good-idea-because? dept

The Internet may be a series of tubes, but those tubes have to be joined together. That takes place at Internet exchanges (IXs), where different ISPs can pass on and receive data. One of the largest and most important such IXs is AMS-IX, which is based in the capital of the Netherlands, Amsterdam. Techdirt reader Dirk Poot points out that AMS-IX has just made the following move:

the Board of the AMS-IX Association proposed the set up of a US-based legal entity for possible expansion to the United States. In an extraordinary General Meeting (GM) held on 27 September 2013, AMS-IX members approved the set up of a US-based legal entity by a majority of votes.

Recently, an opportunity arose with the Open-IX initiative for AMS-IX to expand and build exchanges in the US. Representatives from US-based content providers and telecom operators -- many of them current AMS-IX members or customers -- as well as other Internet industry parties, such as datacenters, founded this initiative. It aims to encourage the development of neutral and distributed Internet exchanges and reduce IP interconnection complexity and cost in the US. In the US this is more complicated and prices are higher than in Europe, where the neutral and distributed Internet exchange model is more common.

It's understandable that US content providers and telecom operators would want to reduce their costs in this way. But as an email written by Erik Bais to AMS-IX members points out, there is a huge risk here for AMS-IX:

Having an US entity within the (AMS-IX org. structure) association / [AMS-IX B.V. company] will directly bring the [AMS-IX B.V. company] and indirectly the association under the influence of the infamous Patriot Act and FISAA.

Specifically:

For the AMS-IX US entity (under US Law) they will receive the official request for the information [passing through AMS-IX], which they are required to send through to their holding company (which is AMS-IX B.V.) as the information or connection isn't on US soil, but in Amsterdam.

1. Denying such request means that they US Entity will most likely be in contempt of court, bringing the US entity and its management in a situation where they can't deny the request of the US Government and the AMS-IX Management. It is a very difficult split between 1 party whom doesn't want to provide the information (Let's assume the AMS-IX B.V. doesn't want to provide the information) and the US Government who has the right to request and all the paperwork and laws at hand to request it.

2. Information in this case could mean: Information about, but also information from (data).

In other words, by opening an office in the US, AMS-IX might be forced by US laws to give the NSA direct access to the huge flows of data at its European Internet exchange.

AMS-IX has this to say about the way its US office would be set up:

The chosen structure will need to protect AMS-IX's current operation and the AMS-IX Association's customers and members from commercial, legal, financial and technical risks and, more specifically, from interception activities by US government agencies.

There are two issues here. One is whether such a legal structure that protects AMS-IX's European operation from the NSA's demands exists or not. And even if it does, there is the question of trust. Once there is the possibility of the NSA demanding access to the AMS-IX traffic, there will always be the fear that it is being granted, even if AMS-IX denies it. After all, if access were granted to the NSA, AMS-IX would be forbidden from talking about that fact, and so it would be impossible to tell what the true situation was.

As a result, it's hard to see how anyone in Europe can really trust AMS-IX again if it goes ahead with this proposed move to open a US office, which means it could lose a lot of its current and future business. That seems a heavy price for a European organization to pay for something that will largely benefit US companies.

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Filed Under: ams-ix, europe, internet exchange, ix, jurisdiction, nsa, nsa surveillance, us