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Microsoft Battling Government With Three Separate Lawsuits
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Microsoft, Brad Smith, general counsel

Summary: The general counsel for Microsoft, Brad Smith, has decried the privacy ‘arms race’ in this country and has filed three lawsuits on behalf of the company. 

During a forum at Harvard Law School, Brad Smith said that we need to find a balance between personal privacy and public safety in order to resolve the conflict of snooping governments and electronics users, according to ComputerWorld.


Smith is the general counsel for Microsoft. “Ultimately there are only two ways to better protect peoples privacy: stronger technology or better laws,” he said.

Smith spoke about the first major change Microsoft had to make and it came in the year following the September 11, 2001 terrorist attacks. He said the company and other telecommunications companies were asked to share data with law enforcement voluntarily.

To read more about Microsoft, click here.

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Smith told the forum that Microsoft adopted a principle and has stuck to it since then. The principle is that when asked to do something, it will so long as it is legally obligated to do so.

“Our basic message was, if the government didn’t feel the law went far enough, it shouldn’t ask us to go beyond the law. It should go to Congress and ask Congress to change the law,” he said.

The next major change for the company came after Edward Snowden’s NSA revelations in the middle of 2013.

To read more about Edward Snowden, click here.

“The public’s trust on a global basis was changed,” he said.

Smith said that Microsoft has made its encryption stronger and has implemented changes in enterprise contracts.

“We said, if the U.S. government came and served a subpoena on us, seeking the email or other records of an enterprise customer, we would resist that, we would go to court, we would argue to a federal judge that that subpoena ought to be served on the customer, not on us. Second, we said that if the data in question were stored exclusively outside the United States, we would go to court and challenge the extraterritorial reach,” Smith said.

In the past year, Smith has filed three lawsuits against the government. One of the lawsuits asserted the first amendment rights of the company to publish more information regarding FISA letters. FISA letters are issued following secret hearings in U.S. courts. At these hearings, law enforcement asks for warrants using the Foreign Intelligence Surveillance Act.

To read more about FISA, click here.

“Reform of the FISA court is so important,” Smith said. “We should not allow that issue to get lost in the public discussion…. Public safety is of course important, but secret courts with secret decisions are not part of the American legal tradition.”

The second lawsuit Smith filed came against an FBI subpoena that was issued in 2013 and requested data on an enterprise customer of the company. The third lawsuit opposes a search warrant from law enforcement in the U.S. for emails stored in Ireland. Microsoft is currently appealing a judge’s ruling against the company in the third lawsuit.

“When should the United States government be able to reach into another country, into a data center built in another country, to get the data stored inside?” Smith said. “One could understand a rule that would say, if you have an American citizen or resident, that is storing data in another place, one could imagine a public policy rationale that would enable the U.S. government to serve a warrant. That stands in sharp contrast to the current position that the Department of Justice is taking in the lawsuit. They’re basically saying, if the data center was built or is operated by an American company then they can reach anything inside. That really goes to the heart of sovereignty.”

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Image credit: IDG News Service



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