On the anniversary of the first news reports on NSA surveillance, Microsoft general counsel Brad Smith seized the opportunity to draw a line in the sand with the U.S. government.
Smith challenged the government curtail surveillance because it’s hurting business and impaling privacy and civil liberties.
Smith framed his comments around a recent customer trip to Europe where he fielded numerous questions about how Microsoft is protecting customer data and the impact the NSA’s surveillance, hacking of data center links and alleged subversion of encryption standards is having on cloud adoption and technology innovation.
“People won’t use technology they don’t trust. We need to strike a better balance between privacy and national security to restore trust and uphold our fundamental liberties,” Smith wrote in a blogpost.
A year ago, the Guardian published its first reports about the NSA’s bulk collection of phone call information from carrier Verizon based on documents provided by an unnamed contractor. Soon thereafter, the world became intimately familiar with Edward Snowden, metadata and secret courts.
Since then, it’s been revealed that the U.S. government, along with overseas partners, including Britain’s GCHQ, have built a complex surveillance infrastructure bent on collecting not only phone call metadata, but email and Internet traffic—even if it’s protected by encryption.
“These disclosures rightly have prompted a vigorous debate over the extent and scope of government surveillance, leading to some positive changes,” Smith said. “But much more needs to be done.”
Microsoft has been among the handful of major technology companies fighting for increased transparency in reporting government requests for customer data. Microsoft fought back after being implicated last July in a set of Snowden documents that it cooperated with U.S. intelligence by giving the NSA pre-encryption access to Skype, easier access to data stored by SkyDrive and that it helped the NSA sidestep its encryption on it Outlook.com portal.
Smith and Microsoft executives have long held firm that they cooperated only when legally compelled to do so. This prompted Microsoft and others to petition the Justice Department for permission to publish better data about requests for customer data, including National Security Letters. The government relented earlier this year, allowing companies to publish such data in particular ranges of numbers.
In the meantime, Smith took advantage of the Snowden anniversary to lay out five things he’d like to see the government change.
U.S. search warrants, Smith said, should end at the U.S. border. No doubt responding to foreign partners’ concerns, Smith expressed concerns about the government using warrants to compel companies for the content of non-U.S. customer communications stored outside the U.S.
“The U.S. government wouldn’t stand for other governments seeking to serve search warrants within American borders to seize the content of U.S. citizens’ emails without going through U.S. legal process,” Smith wrote. “Why should it expect other governments to react any differently?”
Smith also put out a call to beef up impending legislation such as the USA FREEDOM Act to prohibit bulk collection of phone records.
Smith also said the secret FISA Court must introduce an adversarial process to its proceedings, something President Obama said in January would happen.
“There remains a fundamental truth about legal disputes: a judge who hears only one side of a case is less likely to render a just result,” Smith said. “Congress needs to recognize and act on the need for FISA Court reform.”
Like other technology leaders, Microsoft said it will continue to expand its use of encryption on its products and services in order to further frustrate the NSA’s efforts to hack data centers and links between those locations. Smith also decried the government’s continued silence about these activities.
Finally, he called for increased transparency, saying that it will not undermine national security.
Smith pointed out that the 225th anniversary of the Bill of Rights is also at hand, including the Fourth Amendment protecting against unreasonable searches.
“By definition it is up to our own generation to preserve this fundamental constitutional protection. The advance of technology makes these issues even more important,” Smith said. “Now is the time to act.”
