Business, Media and Civil Society Speak Up in Key Privacy Case

[Guest Brad Smith]

Today represents an important milestone in our litigation concerning the U.S. Government’s attempt to use a search warrant to compel Microsoft to obtain and turn over email of a customer stored in Ireland. That’s because nine groups are filing their “friend of the court” briefs in New York today.

 

Seldom has a case below the Supreme Court attracted the breadth and depth of legal involvement we’re seeing today. Today’s ten briefs are signed by 28 leading technology and media companies, 35 leading computer scientists, and 23 trade associations and advocacy organizations that together represent millions of members on both sides of the Atlantic.

 

Collectively these briefs make one conclusion unmistakably clear. This case involves not a narrow legal question, but a broad policy issue that is fundamental to the future of global technology.

 

As we’ve said since this case began, tech companies such as Microsoft for good reason store private communications such as email, photos, and documents in datacenters that are located close to our customers. This is so consumers and companies can retrieve their personal information more quickly and securely. For example, we store email in our Irish datacenter for customers who live in Europe.

 

We believe that when one government wants to obtain email that is stored in another country, it needs to do so in a manner that respects existing domestic and international laws. In contrast, the U.S. Government’s unilateral use of a search warrant to reach email in another country puts both fundamental privacy rights and cordial international relations at risk. And as today’s briefs demonstrate, the impacts of this step are far-reaching.

 

Today’s briefs come from:

 

• Leading technology companies such as Verizon, Apple, Amazon, Cisco, Salesforce, HP, eBay, Infor, AT&T, and Rackspace. They’re joined by five major technology trade associations that collectively represent most of the country’s technology sector, including the BSA | The Software Alliance and the Application Developers Alliance. These groups raise a range of concerns about the significant impact this case could have both on the willingness of foreign customers to trust American technology and on the privacy rights of their customers, including U.S. customers if other governments adopt the approach to U.S. datacenters that the U.S. Government is advocating here.
  

• Two of the country’s largest business organizations, the U.S. Chamber of Commerce and the National Association of Manufacturers, that collectively represent millions of American companies. Their filing discusses the potential ramifications for the American economy at large and the ability of businesses in all sectors to take advantage of the efficiencies offered by cloud computing.
  

• Five of the country’s leading civil liberties organizations from across the political spectrum: the Center for Democracy & Technology, the American Civil Liberties Union, the Electronic Frontier Foundation, the Brennan Center for Justice at New York University School of Law, and the Berkman Center for Internet & Society at Harvard. Their brief focuses onthe significant implications for constitutional and privacy rights of the arguments advanced by the Government and endorsed by the District Court.
  

• Seventeen major and diverse news and media companies, including CNN, ABC, Fox News, Forbes, the Guardian, Gannett, McClatchy, the Washington Post, the New York Daily News, and The Seattle Times. They’re joined by ten news and media associations that collectively represent thousands of publications and journalists. These include the Newspaper Association of America, the National Press Club, the European Publishers Council, and the Reporters Committee for Freedom of the Press. These organizations are concerned that the lower court’s decision, if upheld, will erode the legal protections that have long restricted the government’s ability to search reporters’ email for information without the knowledge of news organizations.
  

• Thirty-five leading computer science professors from 20 of the country’s leading universities. Their brief seeks to help the court grasp the underlying technology so that it applies the law correctly.
  

• Digital Rights Ireland, an organization focused on the protection of privacy in Ireland and the European Union, joined by other European civil liberties groups. Their filing notes that the proper way for the U.S. to obtain the information is through use of the mutual legal assistance treaty agreed between the U.S. and Ireland, thereby ensuring fundamental privacy rights are respected.
  

 

You can see the entire list of signatories to today’s briefs here. On behalf of Microsoft, I want to convey our appreciation for each of these groups for their involvement.

 

Today’s filings also reflect the continuing growth in concerns about the issues raised in this case since the District Court’s decision just five months ago. At that time, five companies, one trade association, and one advocacy group filed briefs for that Court’s consideration.

 

As we said last week when Microsoft filed its own brief in this case, it doesn’t need to be this way. The U.S. has well-established treaties with countries around the world that allow them to seek the information they need while ensuring that citizens of other countries retain the privacy protections offered by their own laws and Courts. And there’s ample opportunity for work to modernize these agreements further.

 

Law enforcement plays a vital role in investigating crimes and keeping our communities safe. We are not trying to prevent them from playing this role, but we believe reforms are needed that ensure that they do their work in a way that promotes vital privacy protections and builds the trust and confidence of citizens in the U.S. and around the world. The challenges are not unique to the United States. But the U.S. government has the opportunity to help lead the way in devising and enacting much needed reforms. Even while the court case moves forward, it is time for the Administration and the U.S. Congress to engage in a holistic debate on the solutions to these issues and find a better way forward.

 

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