"AMS-IX has found a legal structure to operate in the U.S. without having to deal with the PATRIOT Act in the Netherlands.This is the provisional end of the story.
AMS-IX is setting up a fully independent company in Delaware which will manage the exchange nodes in the United States. This also means that employees and directors cannot be exchanged between the two organizations. The U.S. company is a subsidiary of AMS-IX BV, that acts as the sole shareholder. The U.S.-based entity will be granted access to the necessary intellectual property through licensing.
This structure is devised with the international law firm Jones Day and aims to protect the Dutch AMS-IX BV and the AMS-IX Association against U.S. laws such as the USA PATRIOT Act.
Earlier the plans of AMS-IX for expansion into the United States were opposed because of the possible interference of the U.S. justice and security services in the Dutch establishment of AMS-IX.
AMS-IX takes into account a possible extension of the PATRIOT Act that would allow the construction to still become subject to U.S. jurisdiction. In that case, an independent Dutch foundation can be set up within a week to further separate the activities. AMS-IX chooses the current structure because the benefits from economy of scale."
UPDATE 2013-11-06: AMS-IX USA Inc. to Deploy an Open-IX Internet Exchange in New York
UPDATE 2013-09-30: AMS-IX is expanding to the U.S.: 123 out of some 600 members voted in favor of expanding, 102 opposed, 14 abstained. The U.S. branch of AMS-IX will obviously be subject to FISA and the Patriot Act. One possible outcome is that the U.S. will get more / easier access to EU internet traffic that travels via AMS-IX. The AMS-IX management will examine how the Dutch/European AMS-IX can be legally protected. @sigwinch adds: "Internal AMS-IX post claims 'INC' would not expose 'BV' directly to US law but org/ops firewall needed to complete pic."
AMS-IX, the Amsterdam Internet Exchange, is one of the largest internet exchanges in the world. On September 23rd, AMS-IX issued a press release about a proposal to set up shop in the U.S. for possible expansion. On September 27th, the Dutch NOS brought the news that one of the biggest AMS-IX members, SURFnet, is against the proposal, citing concerns about U.S. spying capabilities.
Below I my translation of the NOS news report of September 27th. After reading it, go read Considerations on the expansion of AMS-IX to the US, posted by Bits of Freedom on September 25th. Do NOT forget to read the comments there.
SURFnet against establishment AMS-IX internet hub in U.S.The proposal of the Amsterdam Internet Exchange (AMS-IX, the most important internet exchange of the Netherlands) to set up shop in the United States is not supported by SURFnet, one of its most important users.
Today, members of the AMS-IX will vote on the directors' proposal to set up shop in the United States. Some are concerned that it will invite activities of American secret services such as the NSA.
SURFnet provides for internet communication between universities, academic hospitals and other scientific institutions. In an email message addressed to other members, SURFnet explains that is against the proposal, among other because of concerns about the wiretapping capabilities of the Americans.
"If data are collected under U.S. law, foreign users only have very limited protection, because U.S. constitutional guarantees do not apply to them," states SURFnet.
More and more experts are speaking out against the plan of the AMS-IX. Professor Bart Jacobs (Radboud University) states that it is incomprehensible "that our own critical Internet Exchange AMS-IX" wants to open a branch in the U.S.
According to Jacobs, the AMS-IX thereby voluntarily subjects itself to the Patriot Act, meaning that U.S. authorities can compel access to our internet traffic. "Snowden will ask himself: do they still not understand things in the Netherlands?"
XS4ALL-cofounder Rop Gonggrijp states that "considering the growing legal extremism in the U.S., and recent revelations", the potential consequences of the AMS-IX proposal should be thoroughly investigated first.
I commend SURFnet for acting prudent, cautious, diligent, in this serious matter.
- 2013-11-06: AMS-IX USA Inc. to Deploy an Open-IX Internet Exchange in New York
- 2013-09-25: Bits of Freedom on Considerations on the expansion of AMS-IX to the US
- 2013-xx-xx: European Parliament briefing note (.pdf) on The US National Security Agency (NSA) surveillance programmes (PRISM) and Foreign Intelligence Surveillance Act (FISA) activities and their impact on EU citizens' fundamental rights. This follows a resolution adopted by the European Parliament on 2013-04-09.