Digital common sense: New survey shows Americans want a better privacy balance

A new poll we’re releasing today shows it’s not just the Supreme Court that wants the right balance between public safety and the privacy concerns of technology users. The American public wants this as well.

Since the Supreme Court’s decision in the Riley case last month, I’ve been blogging about the historic importance of its unanimous view that police need a warrant to search someone’s cell phone. The decision shifted the scales of justice in a profound way, in part because the Court noted that phones today are often a gateway to the email and pictures we now store in the cloud, and these deserve the same Constitutional protection we’ve traditionally had for things kept in our homes.

The Riley case addresses the heart of tech products and the rights of our customers, so we wanted to better understand how the public feels about these issues. Interestingly, the results of a survey we commissioned were unequivocal in support of the Court’s decision. A full 83 percent of American voters believe police should get a warrant before searching personal information on someone’s cell phone.

The poll also found that:

· 75 percent agree with Chief Justice Roberts’ statement that “privacy comes at a cost” and there needs to be a balance between fighting crime and our Constitutional right to privacy; and

· 86 percent believe police should have to follow the same legal requirements for obtaining personal information stored in the cloud as they do for personal information stored on paper.

The Supreme Court’s decision, while a historic step, addresses just one of the 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.

We think it’s a problem for governments to use a warrant to reach across international borders and search a person’s email without respecting local privacy laws. And we are not alone. The same survey asked what Americans think about the questions raised in our case and found:

· 79 percent agree the federal government should have to respect local privacy laws when searching through people’s personal information like their email accounts;

· 56 percent are worried that if the U.S. government decides it can demand information in other countries without going through their governments, then other countries will follow suit and force companies to turn over Americans’ private information; and

· Only 13 percent believe that police in another country should be able to obtain the emails of a U.S. citizen stored in the U.S. without informing that citizen or the U.S. government.

As all of this suggests, the American public understands what’s at stake for technology and the future of privacy.

Now we need to hope that government officials will pay attention to this digital common sense.

They’re not doing that yet. Last week, the government in the United Kingdom proposed new legislation that would go in the opposite direction, extending extraterritorial jurisdiction for warrants to other countries and reaching unilaterally the email of people who are not British citizens or residents. And in our case, the U.S. Attorney’s Office in New York filed a brief arguing for a broad mandate for law enforcement to reach email in Ireland without informing the Irish government or following the treaty put in place between our two governments.

The American people understand that these issues matter. We hope that the White House and Congress will listen.

If you’re interested in more information on the survey, which was conducted by the public opinion research firm of Anzalone, Liszt Grove, you can find it here. The poll was conducted July 7 and July 8.

Editor’s Note: This post also appears at www.digitalconstitution.com, a resource for information about Microsoft’s legal challenge to a U.S. warrant for customer communications stored in our data center in Ireland.

About the Author

General Counsel & Executive Vice President, Legal and Corporate Affairs, Microsoft

Brad Smith is Microsoft's General Counsel and Executive Vice President of Legal and Corporate Affairs. He leads the company's Department of Legal and Corporate Affairs (LCA), which has approximately 1,100 employees located in 55 countries. Mr. Smith is responsible for the company's legal work, its intellectual property portfolio and patent licensing business as well as its government affairs and philanthropic work. He also serves as Microsoft's corporate secretary and its chief compliance officer. Mr. Smith currently co-chairs the board of directors of Kids in Need of Defense (KIND) and is the chair-elect of the Leadership Council on Legal Diversity. In Washington state, Mr. Smith has served as chair of the Washington Roundtable, a leading Washington state-based business organization, and he has advanced several statewide education initiatives.