Standing together for greater transparency

The following is a post from Brad Smith, General Counsel and Executive Vice President, Legal & Corporate Affairs, Microsoft. It was originally published on Microsoft on the Issues.


To followers of technology issues, there are many days when Microsoft and Google stand apart.  But today our two companies stand together.  We both remain concerned with the Government’s continued unwillingness to permit us to publish sufficient data relating to Foreign Intelligence Surveillance Act (FISA) orders.

Each of our companies filed suit in June to address this issue.  We believe we have a clear right under the U.S. Constitution to share more information with the public.  The purpose of our litigation is to uphold this right so that we can disclose additional data.

On six occasions in recent weeks we agreed with the Department of Justice to extend the Government’s deadline to reply to these lawsuits.  We hoped that these discussions would lead to an agreement acceptable to all.  While we appreciate the good faith and earnest efforts by the capable Government lawyers with whom we negotiated, we are disappointed that these negotiations ended in failure.

Yesterday, the Government announced that it would begin publishing the total number of national security requests for customer data for the past 12 months and do so going forward once a year.  The Government’s decision represents a good start.  But the public deserves and the Constitution guarantees more than this first step.

For example, we believe it is vital to publish information that clearly shows the number of national security demands for user content, such as the text of an email.  These figures should be published in a form that is distinct from the number of demands that capture only metadata such as the subscriber information associated with a particular email address.  We believe it’s possible to publish these figures in a manner that avoids putting security at risk.  And unless this type of information is made public, any discussion of government practices and service provider obligations will remain incomplete.

Over the past several weeks Microsoft and Google have pursued these talks in consultation with others across the technology sector.  With the failure of our recent negotiations, we will move forward with litigation in the hope that the courts will uphold our right to speak more freely.  And with a growing discussion on Capitol Hill, we hope Congress will continue to press for the right of technology companies to disclose relevant information in an appropriate way.

The United States has long been admired around the world for its leadership in promoting free speech and open discussion.  We benefit from living in a country with a Constitution that guarantees the fundamental freedom to engage in free expression unless silence is required by a narrowly tailored, compelling Government interest.  We believe there remains a path forward that will share more information with the public while protecting national security.  Our hope is that the courts and Congress will ensure that our Constitutional safeguards prevail.