Privacy is not dead: Microsoft lawyer prepares to take in US government

Brad Smith tells Dominic Rushe US demand for access to customer's emails on server in Dublin strikes at heart of balance between safety and privacy

Brad Smith, Microsoft's general counsel, says people will only use technology they can trust and that the only way forward is either through stronger technology or better laws

Imagine this scenario. German police investigating a press leak descend on Deutsche Bank headquarters in Frankfurt. They serve a warrant to seize a bundle of private letters a US reporter is storing in a safe deposit box at a bank branch in Manhattan. The bank complies and orders the branch manager to open the reporter's box and fax the private letters to the Stadtpolizei

Uproar! The US would be outraged at the bypassing of bilateral agreements and flouting of its citizen's rights. And yet this is exactly what the US government is ordering Microsoft to do, according to the software giant's general counsel, Brad Smith

After bruising revelations regarding the company's working relations with the National Security Agency(NSA), Smith has emerged as one of the technology industry's loudest voices for reform and greater openness

Now he is spearheading Microsoft's fight against US government demands for access to emails from a Microsoft customer which are currently sitting on a server in Dublin, Ireland, as part of a narcotics investigation. Earlier this year, a US court ruled Microsoft should hand the data over. Microsoft declined to comply, voluntarily entering into contempt

Last week Microsoft filled its appeal : "The power to embark on unilateral law enforcement incursions into a foreign sovereign country - directly or indirectly - has profound foreign policy consequences. Worse still, it threatens the privacy of US citizens," the company said in court documents

If Microsoft loses, Smith argues it could put all of our private digital information at risk as well as further damaging the standing and reputation of US tech firms still reeling from the NSA whistleblower Edward Snowden's leaks

It is believed to be the first time a US company has fought the government against a domestic warrant for data held overseas and it is likely to prove one of the most important test cases to emerge since the NSA leaks. It is a case almost tailor-made for Smith. Microsoft's top lawyer since 2002, he has a deep interest in the long history of government challenges to privacy - challenges he says have often been triggered by wars and by changes in technology

Smith says the current debate, and Microsoft's upcoming court case, were "historically inevitable". "The pendulum swung for lots of reasons we can understand following 9/11. The pendulum always swings back, that's one of the lessons of history," he says

Washington has often clamped down on personal liberty during times of war. Smith cites President John Adams's introduction of the alien and sedition acts in the name of national security in 1798, during a "quasi-war" with France. The bills effectively disenfranchised voters who disagreed with Adams. One of the acts, the alien enemies act, was used by Franklin D Roosevelt to intern Japanese Americans during the second world war, another egregious example of government overreaction in the name of security

Today's debate differs from previous ones on two major points, Smith says. First, previous wars had defined endings. The "war on terror" appears without end

"The current challenges to the security and safety of people don't have that defined endings," he says. "By definition we are having to think about how we navigate through a more dangerous world. At the same time one really needs to think hard about how the balance should be struck between public safety and personal privacy

"Both are not just important goals but important values for society. It's not as if we can throw one aside for the other."

The second major difference is technology. Before the internet, issues of privacy were largely national affairs. Now those borders are gone. There are about 3 billion connected devices today - including a billion PCs and 2 billion smartphones. By the end of this decade, Smith says there will be 50 billion devices connected to data centres, everything from smart watches and health bands to thermostats and fridges. All the information they collect  will be very telling about us and will all be stored - like those emails in Dublin - in the cloud. How it is protected will be one of the big debates of the coming decade, he says

History has led to starkly different attitudes in different countries. "You can't help but be in Berlin without feeling the full force of German history and what that means for the German people," says Smith. "In the same vein it has impacted the views of people in the United Kingdom and the United States."

While the Germans reacted with fury to the NSA revelations, especially the news that the NSA spied on Chancellor Angela Merkel, the UK government has fought back. Robert Hannigan, newly installed GCHQ boss, recently castigated US tech firms for failing to cooperate enough with spy agencies, calling them "the command and control networks of choice" for terrorists

"[There are] few countries where people have lived for more decades with the threat of domestic terrorism," says Smith. "The UK hasn't even had the same history as the US with the government overreaching and abusing its own power. The UK doesn't have Watergate but it does have Bletchley Park"

Hannigan's comments followed similar criticism from the FBI director, James Comey, who has charged that the increasing use of encryption aids criminals and terrorists and is leading us to a "a very, very dark place".

"I understand the point but the focus falls short of what is going to lead any of us to a better path," says Smith. "Fundamentally, technology companies are reacting to not just a business but a societal imperative. People will only use technology that they trust and given that that trust has been under pressure companies have to find ways to restore trust."

The only ways to do that are through stronger technology or better laws, he says.

"If there are those in government concerned about stronger technology then we need to have a dialogue about better laws. The only thing I am certain will not get us anywhere is complaints about better technology and a resistance to better laws"

In the absence of better laws, Smith says technology companies will continue to innovate and continue to encrypt data - unless they are stopped

So far Smith has been disappointed by the lack of progress made by legislators. In November the US failed to pass the USA Freedom Act, a bill that would have curbed some aspects of surveillance but which Smith said would still have left major issues unaddressed. For example the US has yet to rule out hacking into the data certres of firms outside the US. "We believe we are entitled to constitutional protection from our own government whereever we happen to be," Smith says

Regarding the UK, he is concerned about the expansion of surveillance under the Data Retention and Investigatory Powers Act. "I understand how that enhances public safety in Britain," he says. "And I think you have to appreciate that. But on balance it creates more difficulties for creating an international regime where countries each have laws that they can follow and respect"

If other governments follow the UK and US, Smith says, tech companies will be placed in the middle of an irresolvable issue. "One government will say you must go get this and another will say you must not hand it over," he says. And tech companies are not in the position to solve this issue themselves, he says

"When people suggest technology companies should go beyond what they are legally required to do, I feel what they are really asking technology companies to do is make decisions that the governments themselves haven't been prepared to make. The better course is for governments to decide in the form of law what technology companies must do."

The best news so far for the tech sector and privacy has come from the supreme court. In a sweeping June decision, the US's highest court unanimously ruled that police must obtain a warrant to search the contents of cellphones seized from people they have arrested

The so-called Riley decision shows that the supreme court understands how important technology has become in terms of storing people's private information and reasserts the concept that "protection of privacy is a timeless value even amidst changing technology", Smith says

Despite some high-profile opinions, notably that of the Facebook founder Mark Zuckerberg, who infamously said privacy was dead, privacy is very much alive and well, says Smith. "The meaning of the term has evolved. It's not about keeping something secret. It's about continuing to control who you share information with and what they can do with it. That notion of privacy deserves legal protection."

Microsoft's own polling in various states and countries shows consumers agree with the supreme court that information stored in the cloud should have as much protection as information stored on paper. "So far, repeatedly 80% or more of the public embraces that principle," he says. "The public gets it and if the public gets it then I think the courts will get it as well."

Microsoft's appeal is backed by Apple, AT&T, Cisco, Verizon and others, all of whom argue that a final decision in favour of the US government would create a "dramatic conflict with foreign data protection laws". Germany has already stated that if the decision is upheld, it will not store data with US cloud service providers

The film The Lives of Others concerned East German domestic surveillance " You can't help but be in Berlin without feeling the full force of German history and what that means for the German people,' says Brad Smith

The Guardian and other news organisations are filing supporting briefs, arguing that if the company loses, the US government could come after news organisations by targeting emails and other information stored overseas

Oral arguments are expected to begin in the spring. If Microsoft loses, Smith says companies will be forced to do more of what the government dislikes the most, in order to reassure customers. "It will force companies to look for more ways to encrypt data and not retain the keys. Partner with non-US companies so that non-US companies have the servers. None of which will be helpful to the US," he says

A win for the US will also encourage other governments to follow suit. "The US government cannot expect to have one model that it follows without anticipating that the rest of the world will follow that model," Smith says. "And this is a model that encourages governments to reach into other territories. That does not seem like a sound approach to international stability or mutual respect in the 21st century.

Smith sees more battles ahead as the world's major governments are forced to rewrite rules written for another era. The Electronic Communications Privacy Act, the act over which Microsoft and the US are clashing, was introduced in 1986 by Ronald Reagan. That same year, Smith brought his first computer to work. There was no Facebook, no Fitbit; Microsoft Word was three years old. Most people still used typewriters.

The intersection of technology and law was peripheral. Now it is central, and so important that Smith believes some form of international framework will have to be worked out. He is optimistic that it will come, despite international differences.

"It's become so important to society that it has become a mainstream topic. It makes it even more important to think now about the values that are at stake because it affects us all in profound ways," he says

"Ultimately it's the governments that must make the decisions but we in technology have a role to play in trying to ensure that the debate is well informed and that we think broadly about our responsibilities as well."

think broadly about our responsibilities as well

have a role to play in trying to ensure that the debate is well informed

ultimately it's the governments that must make the decisions

affects us all in profound ways

at stake

be at stake

to think now about the values that are at stake

has become a mainstream topic

despite international differences

believes some form of international framework will have to be worked out

it is central

was peripheral

the intersection of technology and law was peripheral

brought his first computer to work

was introduced in 1986

are clashing

the act over which Microsoft and the US are clashing

written for another era

sees more battles ahead

sees more battles ahead as the world's major governments are forced to rewrite rules written for another era

does not seem like a sound approach to international stability or mutual respect in the 21st century

encourages governments to reach into other territories

without anticipating

cannot expect to have one model that it follows without anticipating that the rest of the world will follow that model

follow suit

will also encourage other governments to follow suit

 a win for the US

none of which will be helpful to the US

not retain the keys

to look for ways to encrypt data

will force companies to look for more ways to encrypt data and not retain the keys

in order to reassure customers

will be forced to do more of what the government dislike the most

oral arguments are expected to begin in the spring

by targeting emails and other information stored overseas

could come after news organisations

if the company loses

are filling supporting briefs

concerned East German domestic surveillance

has already stated that if the decision is upheld, it will not store data with US cloud service providers

a dramatic conflict with foreign data protection laws

in favour of the US government

all of whom argue that a final decision in favour of the US government would create a "dramatic conflict with foreign data protection laws

is backed by Apple

Microsoft's appeal is backed by Apple

if the public gets it then I think the courts will get it as well

repeatedly 80% or more of the public embraces that principle

information stored in the cloud should have as much protection as information stored on paper

shows consumers agree with the supreme court

Microsoft's own polling in various states

that notion of privacy deserves legal protection

is about continuing to control who you share information with and what they can do with it

is not about keeping something secret

the meaning of the term has evolved

is very much alive and well

infamously said privacy was dead

notably taht of the Facebook founder Mark Zuckerberg

despite some high-profile opinions

even amidst changing technology

is a timeless value even amidst changing technology

reasserts the concept that protection of privacy is a timeless value even amidst changing technology

the supreme court

the so-called Riley decision shows that the supreme court understands how important technology has become in tems of storing people's private information

seized from people they have arrested

unanimously ruled

the US's highest court unanimously ruled that police must obtain a warrant to search the contents of cellphones seized from people they have arrested

in a sweeping June decision

the best news so far for the tech sector and privacy has come from the supreme court

in the form of law what technology companies must do

make decisions that the governments themselves haven't been prepared to make

beyond what they are legally required to do

suggest technology companies should fo beyond what they are legally required to do

are not in the position to solve this issue themselves

must not hand it over

will be placed in the middle of an irresolvable issue

laws that they can follow and respect

creates more difficulties for creating an international regime

on balance

have to appreciate that

how that enhances public safety in Britain

the expansion of surveillance

is concerned about the expansion of surveillance under the Data Retention and Investigatory Powers Act

regarding the UK

are entitled to constitutional protection from our own government whereever we happen to be

has yet to rule out hacking into the data certres of firms outside the US

would still hace left major issues unaddressed

a bill that would have curbed some aspects of surveillance

failed to pass the USA Freedom Act

has been disappointed by the lack of progress made by legislators

will continue to innovate and continue to encrypt data

in the absence of better laws

the only thing I am certain will not get us anywhere is complaints about better technology and a resistance to better laws

need to have a dialogue about better laws

concerned about stronger technology

given that that trust has been under pressure companies have to find ways to restore trust

are reacting to not just a business but a societal imperative

fundamentally, technology companies are reacting to not just a business but a societal imperative

the focus falls short of what is going to lead any of us to a better path

is leading us to a very dark place

has charged that the increasing use of encryption aids criminals

followed similar criticism from the FBI director

overreaching and abusing its own power

hasn't even had the same history as the US with the government

have lived for more decades with the threat of domestic terrorism

spied on Chancellor Angela Merkel

reacted with fury to the NSA revelations

has impacted

has impacted the views of people

it has impacted the views of people

in the same vein

what that means for the German people

the full force of German history

without feeling the full force of German history

has led to starkly different attitudes in different countries

how it is protected will be one of the big debates of the coming decade

will be very telling about us and will all be stored

connected to data centres

by the end of this decade

those borders are gone

issues of privacy were largely national affairs

can throw one aside for the other

it's not as if we can throw one aside for the other

are not just important goals but important values for society

how the balance should be struck between public safety and personal privacy

one really needs to think hard about how the balance should be struck between public safety personal privacy

navigate through a more dangerous world

are having to think about

by definition we are having to think about how we navigate through a more dangerous world

don't have that defined endings

the current challenges to the security

the war on terror appears without end

had defined endings

differs from previous ones on two major points

another egregious example of government overreaction in the name of security

was used by Franklin D Roosevelt to intern Japanese American during the second world war

the bills effectively disenfranchised voters who disagreed with Adams

cites President John Adams's introduction of the alien and sedition acts in the name of national security in 1798

has often clamped down on personal liberty during times of war

have often been triggered by wars and by changes in technology

has a deep interest in the long history of government challenges to privacy

tailor-made

is a case almost tailor-made for Smith

is likely to prove one of the most important test cases to emerge since the NSA leaks

a domestic warrant for data held overseas

is believed to be the first time a US company has fought the government against a domestic warrant for data held overseas

still reeling from the NSA whistleblower Edward Snowden's leaks

the reputation of US tech firms still reeling from the NSA whistleblower Edward Snowden's leaks

could put all of our private digital information at risk as well as further damaging the standing

could put all of our private digital information at risk

threathens the privacy of US citizens

has profound foreign policy consequences

the power to embark on unilateral law enforcement incursions into a foreign sovereign country

filled its appeal

declined to comply, voluntarily entering into contempt

a US court ruled Microsoft should hand the data over

earlier this year

as part of a narcotic investigation

are currently sitting on a server in Dublin

is spearheading Microsoft's fight against US government demands for access to emails

has emerged as one of the technology industry's loudest voices for reform and greater openness

regarding the company's working relations with the National Security Agency

after brusing revelations regarding the company's working relations with the National Security Agency(NSA)

is ordering Microsoft to do

flouting of its citizen's rights

would be outraged at the bypassing of bilateral agreements

uproar! the US would be outraged at the bypassing of bilateral agreements and flouting of its citizen's rights

fax the private letters to the Stadtpolizei

compiles and orders the branch manager to open the reporter's box

is storing in a safe deposit box at a bank branch in Manhattan

serve a warrant

serve a warrant to seize a bundle of private letters a US reporter

descend on Deutsche Banc headquarters

investigating a press leak descend on Deutsche Bank headquarters in Frankfurt

way forward

the only way forward is wither through stronger technology or better laws

general counsel

strikes at heart of balance between safety and privacy

demand for access to customer's emails on server