Brad Smith

  • October 16, 2017
    Guest Post

    by Brad Smith, President and Chief Legal Officer, Microsoft

    *This piece originally appeared on Microsoft on the Issues on October 16, 2017.

    In July 2016, the Court of Appeals for the Second Circuit agreed with Microsoft that U.S. federal or state law enforcement cannot use traditional search warrants to seize emails of citizens of foreign countries that are located in data centers outside the United States.  Today, the Supreme Court granted the Department of Justice’s petition to review Microsoft’s victory.  This is an important case that people around the world will watch.  We will continue to press our case in court that the Electronic Communications Privacy Act (ECPA) – a law enacted decades before there was such a thing as cloud computing – was never intended to reach within other countries’ borders.

  • September 7, 2017
    Guest Post

    by Brad Smith, President and Chief Legal Officer, Microsoft

    This piece was originally posted on Microsoft On The Issues

    We are deeply disappointed by the administration’s decision today to rescind protection under the program for Deferred Action for Childhood Arrivals (DACA). As we said last week, we believe this is a big step back for our entire country.

    The question for individuals, employers and the country is what we do now.

  • June 28, 2017
    Guest Post

    *This piece originally appeared on Microsoft on the Issues on June 23, 2017.

    by Brad Smith, President and Chief Legal Officer, Microsoft

    Today the U.S. Justice Department asked the Supreme Court to reconsider a legal decision, in a case brought by Microsoft, which found that U.S. warrants cannot be unilaterally applied to email in other countries. It seems backward to keep arguing in court when there is positive momentum in Congress toward better law for everyone. The DOJ’s position would put businesses in impossible conflict-of-law situations and hurt the security, jobs, and personal rights of Americans.

    DOJ’s request follows House and Senate hearings earlier this month which demonstrated strong support for modernizing the 31-year-old law at issue in the case and implementing updated data-sharing treaties with our allies. Those in agreement include members of Congress, the business community, academic researchers, our international allies and the Justice Department itself. In fact, Congress has already taken steps to address this important issue and DOJ has already negotiated the first new international agreement. Last year, the International Communications Privacy Act (“ICPA”) was introduced by Sens. Orrin Hatch and Christopher Coons and Reps. Tom Marino and Suzan DelBene to create a modern legal framework. We understand the sponsors may reintroduce the bill after incorporating input from a range of stakeholders. These solutions consider the current needs of law enforcement, the realities of modern technology and the application of people’s traditional rights in today’s world.

    As Judge Gerard E. Lynch stated in his concurring opinion in our case, “Although I believe that we have reached the correct result as a matter of interpreting the statute before us, I believe even more strongly that the statute should be revised, with a view to maintaining and strengthening the Act’s privacy protections, rationalizing and modernizing the provisions permitting law enforcement access to stored electronic communications and other data where compelling interests warrant it, and clarifying the international reach of those provisions after carefully balancing the needs of law enforcement (particularly investigations addressing the most serious kinds of transnational crime) against the interests of other sovereign nations.”

  • February 2, 2017
    Guest Post

    *This piece originally appeared on the Microsoft Blog.

    by Brad Smith, President and Chief Legal Officer, Microsoft

    Proposal calls for case-by-case exception process for law-abiding visa holders with pressing needs

    In last Friday’s executive order, the president expressly gave to the secretaries of state and Homeland Security the authority to grant exceptions on a case-by-case basis, consistent with the national interest, to issue visas and other immigration benefits. Today Microsoft is filing a formal request asking these cabinet officers to create a process to grant exceptions that will permit “Responsible Known Travelers with Pressing Needs” to re-enter the country while protecting the nation’s security. The important details for this proposal are included in our formal request and are outlined below.

    At the outset, we recognize that this proposal will not and should not end the broader debate and deliberations regarding last week’s executive order. Our company is one among many that has expressed its views, and we will continue to participate energetically and constructively in the public discussions that help define our democratic processes.

    But even amidst these debates, there is an opportunity under the executive order to address the pressing needs of real people. There currently are law-abiding visa holders who are parents that were outside the United States last Friday and therefore cannot re-enter the country. These parents are stranded and separated from their children. Other individuals are confronting genuine family emergencies such as the need to visit a critically ill parent.

  • July 17, 2014

    by Jeremy Leaming

    Eighty-three percent of American “voters believe police should get a warrant before searching personal information on someone’s cell phone,” Microsoft General Counsel Brand Smith notes in a post on Digital Constitution.

    The survey conducted by the research firm, Anzalone Liszt Grove, following the U.S. Supreme Court’s unanimous opinion in Riley v. California, also reveals that 86 percent of respondents “believe police should have to follow the same legal requirements for obtaining personal information in the cloud as they do for personal information stored on paper.” In Riley, the high court found that police need warrants to search mobile devices of people they arrest.

    Smith says that while the Riley decision can be viewed as a “historic first step,” it only addresses “one of many questions that the growth of technology is posing for our privacy laws. We’ve raised another unresolved question in a case in federal court in New York in which we’re challenging a search warrant seeking customer communications stored in our data center in Ireland.”

    He continued that Microsoft believes it is a “problem for governments to use a warrant to reach across international borders and search a person’s email without respecting local privacy laws.” Smith then cites the survey that says a majority of Americans agree.

    Seventy-nine percent of those polled believe the “federal government should have to respect local privacy laws when searching through people’s personal information like their email accounts.” Moreover, the survey found 56 percent of respondents are “worried” that if the federal government demands “information in other countries without going through their governments, then other countries will follow suit and force companies to turn over Americans’ private information.”

    Smith concludes that the polling, all of which is available here, “suggests” Americans understand “what’s at stake for technology and the future of privacy.”