Asked by Zittrain whether Microsoft has had discussions about extending the same protections to "run of the mill" consumers, not just enterprises, Smith appeared to acknowledge that there are limits to the legal resources that the company is willing to commit on behalf of its customers.
Smith said he has filed three lawsuits against the government in the past year, including one asserting Microsoft's first amendment right to publish more information about so-called FISA letters (these are issued after secret hearings in the U.S. court where law enforcement seeks warrants under the Foreign Intelligence Surveillance Act). "Reform of the FISA court is so important," Smith said. "We should not allow that issue to get lost in the public discussion&Public safety is of course important, but secret courts with secret decisions are not part of the American legal tradition."
Microsoft's second lawsuit challenged an FBI subpoena that was issued late last year, for data on an enterprise customer. In the third lawsuit, where Microsoft is now appealing a judge's ruling against it, it is opposing a search warrant by U.S. law enforcement for emails stored in a data center in Ireland.
"When should the United States government be able to reach into another country, into a data center built in another country, to get the data stored inside?" Smith said. "One could understand a rule that would say, if you have an American citizen or resident, that is storing data in another place, one could imagine a public policy rationale that would enable the U.S. government to serve a warrant. That stands in sharp contrast to the current position that the Department of Justice is taking in the lawsuit. Theyre basically saying, if the data center was built or is operated by an American company then they can reach anything inside. That really goes to the heart of sovereignty."
It's quite likely that Chinese e-commerce giant Alibaba will build a data center in the U.S., Smith said. "How will the people in Washington, D.C., feel if the Chinese government, if the Russian government, the Iranian government, the North Korean government, or pick the government of your choice decides to simply follow the principal thats been advocated by the U.S. government? Suddenly the rights of Americans are not being protected by their own laws, they are subject a whole bunch of other laws."
The risk is of fostering chaos on the Internet, he said. "But more important is what it means for people. Are people going to be able to continue to have the confidence that their rights are going to be protected by their own constitution and by their own laws? Or is it going to be something that can be overridden by other governments and their laws?"
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