Microsoft’s general counsel calls on Congress to do more to protect users’ private data
By Grant Gross
Congress needs to do more to protect private data of U.S. citizens from government surveillance and the misuse of technology by companies, a top Microsoft executive said Tuesday.
Congress has taken small steps to protect data from surveillance by the U.S. National Security Agency and other government agencies, but lawmakers need to go further, Microsoft’s Brad Smith said during a speech at the Brookings Institute. Lawmakers should also ensure that companies are accountable “to regulators, through regulation” for their privacy practices, Smith said.
“It needs to be well-designed regulation, it needs to be thoughtful, it needs to be balanced, but we cannot live in the Wild West when we’re talking about information that is this important to people,” he said.
The importance of online privacy will grow in the coming years, Smith said, as more household devices connect to the Internet. The number of connected devices today—including 1 billion PCs and 2 billion smartphones—will be dwarfed by the Internet of things, he predicted.
“By the end of this decade, there will be 50 billion devices in the Internet of things connected to data centers around the world,” Smith said. “We will enter a world where every thermostat, smoke detector, fire extinguisher, parking meter, traffic light, garbage can, and you name it, is a connected device.”
Smith didn’t lay out the specific provisions of a data privacy bill the company would support, but he said it should ensure transparency over data collection practices and accountability for privacy practices of companies, and give consumers control over their data.
Microsoft, criticized earlier this year for searching for evidence of trade secret theft in a Hotmail account, has called in past years for Congress to pass comprehensive privacy legislation that would set the ground rules for businesses that handle personal information. So Smith’s speech Tuesday represented, in some ways, a renewal of Microsoft’s past advocacy.
But former NSA contractor Edward Snowden’s revelations in the past year of widespread worldwide surveillance by the agency has raised the profile of an “inevitable” debate over limits of online data collection, Smith said.
Microsoft turned down a 2002 request from the NSA to voluntarily turn over customer email information, with the company arguing that U.S. surveillance and law enforcement agencies should go through a legal process to obtain that data, Smith said. If a government agency requesting customer data “felt the legal process didn’t go far enough, it shouldn’t ask us for help, it should turn to Congress,” Smith said.
The NSA should not be tapping into U.S. tech vendor’s networks without permission, Smith said, as has been reported based on Snowden’s leaks. “We knew what we were asked to do; we knew what we were being required to do,” he said. “We didn’t know what was being done without our knowledge.”
Smith called on Congress to pass a law ending the NSA’s “unfettered” bulk collection of data and to require more transparency from the U.S. Foreign Intelligence Surveillance Court. The House of Representatives recently passed a bill and an amendment to a defense spending bill that would limit the agency’s U.S. telephone records program, but the Senate has not yet acted on them.
“More steps are needed,” he said. The Senate needs to act “so that the public, here and around the world, can have the fundamental trust it deserves in the technology it uses every day.”
Smith also noted that Microsoft has challenged a December search warrant, from the U.S. District Court for the Southern District of New York, for private email communications located in the company’s facility in Dublin, Ireland.
Since the late 1800s, U.S. law has required search warrants to name the specific location of the information they seek, instead of requiring a company receiving the warrant to search multiple locations for the information, as has happened in the Ireland case, Smith said. U.S. search warrants also haven’t been able to reach overseas, just as U.S. residents wouldn’t want foreign courts to be able to search domestic locations, he said.
Law enforcement agencies “are giving us an account name, and they’re telling us to go from building to building to building, and from state to state to state, and even from country to country to country, if that’s what it takes to pull all of the information that belongs to that customer and turn it over to the government,” Smith said. There’s a better way to deal with warrants “than by deputizing technology companies and telling them to look, literally, everywhere on the planet.”
During a question-and-answer session, an audience member questioned Microsoft’s resistance, saying email records can be held in multiple locations, with Microsoft likely able to access them from points around the world, which justifies the government warrant.
U.S. Attorney Preet Bharara of the Southern District of New York has also opposed Microsoft’s attempts to invalidate the warrant.
If Microsoft’s interpretation of the law is upheld, Web services providers could move content around the world in an effort to avoid law enforcement requests, Bharara has written in a brief to the court.
Law enforcement’s ability to access email content “would depend entirely on where a service provider chooses to store data,” he wrote. “Electronically stored information, like the data sought by the Warrant, can be maintained in any location and moved around the world easily, at any time and for any reason.”
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