Microsoft General Counsel Calls for FISA Court reform

Microsoft General Counsel Calls for FISA Court reform

Secret courts and decisions are incompatible with US traditions, Microsoft Counsel Says

  • Posted on: 7 November 2014
  • By: stannenb

Saying that "secret courts with secret decisions are incompatible with American traditions," Microsoft's General Counsel Brad Smith called for the reform of the Foreign Intelligence Surveillance Act (FISA) court Tuesday. Smith told a Harvard Law School audience that, in order to regain trust in technology companies and US intelligence and law enforcements more transparency was vital and that FISA reform was "paramount" in that effort. The FISA Court, established in 1978, reviews requests for warrants targeting foreign intelligence agents in the United States. The requests and decisions remain secret and the Court's reach has only become apparent after Edward Snowden leaked secret National Security Agency documents to the press.

The difficulties a democratic society has in even discussing its intelligence agencies was demonstrated almost immediately in Smith's talk. Asked by moderator Harvard Law Professor Jonathan Zittrain about PRISM, a large NSA internet data collection program revealed by Edward Snowden, Smith said that no US official had ever talked to him about something called PRISM, speculating that PRISM was an internal code name and that another name is used to discuss it with those outside the intelligence community. Because much of the dealings of technology companies and the NSA remain secret, Smith wasn't willing to discuss it further.

Smith focused on efforts Microsoft has made since the Snowden revelations, calling the Snowden revelations a "sea change" that caused a double-digit drop in how many people trust technology companies. Like other technology companies, they've increased the use of encryption, making transmitted data less vulnerable to interception. They've joined with other companies to lobby the US government to allow more detailed disclosure about governmental data requests to which Microsoft is compelled to respond. Microsoft has filed a lawsuit asserting that it has a First Amendment right to disclose even more. It has adopted a posture, enforced by its own contracts that, for corporate customers, it will resist subpoenas for data and argue in court that the government should serve the customer with the subpoena, not Microsoft. Lastly, Microsoft is challenging a US government subpoena for email it stores in Ireland, asserting that the United States has no legal standing to request data stored in a foreign company. Not only is this a breathtaking expansion of national sovereignty, said Smith, but consider what it would mean for Americans if, for example, eBay or PayPal were bought by North Korean, Iranian, Russian or Chinese companies. How would Americans feel, he asked, if the rights of Americans were suddenly governed by other countries' laws?

Smith warned about an emerging "privacy arms race," which is only effective if you assume that governments won't respond to corporate efforts to resist data disclosure. What's needed, he said, was a broad-based discussion of the balance between security and privacy, a discussion we should be in a good position to have as "we have a president ... who is a constitutional law professor." Smith neglected to note that the president received his training in constitutional law at Harvard Law School.

Efforts to reform the FISA court have been stalled in Congress for over a year. Section 215 of the Patriot Act, the portion of the law that the government asserts gives it authority for much of its large scale surveillance efforts, is set to expire on June 1, 2015.

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