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.
Mr. Smith currently serves as president of the Association of General Counsel. Earlier this year, he was named by the National Law Journal as one of the 100 most influential lawyers in the United States.
Mr. Smith has been general counsel since 2002. He can be followed on Twitter at http://twitter.com/#BradSmi.
Posted by Brad SmithGeneral Counsel & Executive Vice President, Legal & Corporate Affairs, Microsoft
Last Thursday, news coverage focused on a case in 2012 in which our investigators accessed the Hotmail content of a user who was trafficking in stolen Microsoft source code. Over the past week, we’ve had the opportunity to reflect further on this issue, and as a result of conversations we’ve had internally and with advocacy groups and other experts, we’ve decided to take an additional step and make an important change to our privacy practices.
Effective immediately, if we receive information indicating that someone is using our services to traffic in stolen intellectual or physical property from Microsoft, we will not inspect a customer’s private content ourselves. Instead, we will refer the matter to law enforcement if further action is required.
Successful challenge of National Security Letter protects longstanding policy of notifying enterprise customers if a government requests their data
On Thursday, a federal court in Seattle unsealed documents related to an FBI National Security Letter that Microsoft successfully challenged in court late last year. This marks an important and successful step to protect Microsoft's enterprise customers regarding government surveillance.
Because information about the case wasn’t public until today, this is our first opportunity to discuss it in detail. Given the strong ongoing worldwide interest in these issues, we wanted to provide some additional context on the matter.
Posted by Brad SmithGeneral Counsel & Executive Vice President, Legal & Corporate Affairs, Microsoft
Today we are updating our transparency reporting to provide new information relating to governmental demands for customer data. Beginning last summer, Microsoft, Google, and other companies filed lawsuits against the U.S. government arguing that we have a legal and constitutional right to disclose more detailed information about these demands. We contended that we should be able to disclose information about legal orders issued pursuant to U.S. national security laws such as the Foreign Intelligence Surveillance Act (FISA), which we had previously been barred from disclosing.
As a result of that litigation and after lengthy discussions, the Government recently agreed for the first time to permit technology companies to publish data about FISA orders. While there remain some constraints on what we can publish (more details on that below), we are now able to present a comprehensive picture of the types of requests that we receive from the U.S. Government pursuant to national security authorities.
In the year since news reports surfaced about U.S. government surveillance practices, a lot has changed. And there even have been some initial positive reforms. We all want to live in a safe and secure world and governments - including the U.S. government – play a vital role in helping to protect our communities. But the reality is clear. The U.S. Government needs to address important unfinished business to reduce the technology trust deficit it has created.
It was a year ago this week that the Guardian and Washington Post published their first reports about the extent of U.S. government surveillance of phone and Internet records, sometimes in partnership with others. As the story evolved, we learned that the government was not just seeking a relatively small amount of content from Internet companies via legal orders. It’s now apparent that the government intercepted data in transit across the Internet and hacked links between company data centers. These disclosures rightly have prompted a vigorous debate over the extent and scope of government surveillance, leading to some positive changes. But much more needs to be done.
Last week, President Obama spoke about the role of the National Security Agency and announced some important changes to the surveillance practices of the U.S. government. We appreciate the steps the President announced, which represent positive progress on key issues including privacy protections for non-U.S. citizens. There is more work to do to define some of the details and additional steps that are needed, so we’ll continue to work with both the administration and Congress to advocate for reforms consistent with the principles our industry outlined in December.
This week, the World Economic Forum holds its annual meeting in Davos, Switzerland where these same issues of data privacy and reform of government surveillance will be on the agenda. We hope that these discussions will spur a focus on the international steps that governments can take together. While there is no substitute for American leadership and action on these issues, the time has come for a broader international discussion. We need an international legal framework – an international convention – to create surveillance and data-access rules across borders.
Today we have asked the Attorney General of the United States to personally take action to permit Microsoft and other companies to share publicly more complete information about how we handle national security requests for customer information. We believe the U.S. Constitution guarantees our freedom to share more information with the public, yet the Government is stopping us. For example, Government lawyers have yet to respond to the petition we filed in court on June 19, seeking permission to publish the volume of national security requests we have received. We hope the Attorney General can step in to change this situation.
Until that happens, we want to share as much information as we currently can. There are significant inaccuracies in the interpretations of leaked government documents reported in the media last week. We have asked the Government again for permission to discuss the issues raised by these new documents, and our request was denied by government lawyers. In the meantime, we have summarized below the information that we are in a position to share, in response to the allegations in the reporting:
Not surprisingly, we remain subject to these types of legal obligations when we update our products and even when we strengthen encryption and security measures to better protect content as it travels across the web. Recent leaked government documents have focused on the addition of HTTPS encryption to Outlook.com instant messaging, which is designed to make this content more secure as it travels across the internet. To be clear, we do not provide any government with the ability to break the encryption, nor do we provide the government with the encryption keys. When we are legally obligated to comply with demands, we pull the specified content from our servers where it sits in an unencrypted state, and then we provide it to the government agency.
Today, we are joining AOL, Apple, Facebook, Google, LinkedIn, Twitter and Yahoo in calling for reforms of government surveillance.
Since Microsoft was founded, we’ve believed technology is a powerful tool that can help people. In that belief we remain steadfast.
But we also recognize another important point. People won’t use technology they don’t trust. Governments have put this trust at risk, and governments need to help restore it.
Last week we announced that we’re taking new steps to reduce the risk of government snooping. Today we’re joining with others across our industry to call on governments to adhere to specific principles with respect to surveillance.
By 2042, the U.S. population is projected to be “majority minority," and no one race or ethnicity will any longer be the majority in America. While America increasingly reflects the extraordinarily diverse people and cultures from around the world, the legal profession does not.
Unless the legal profession makes faster progress, it will miss the dynamism and creativity that diversity brings to other fields. We risk failure in having a profession that is as diverse as the country we serve – a prerequisite for healthy legal service for a democracy.
Many lawyers are aware we have not kept pace with the nation. What is troubling is the lack of clarity about why this is happening. And until we know why, we are just guessing at the best ways to help build a more diverse legal profession.
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.
Over time, privacy protection has advanced in key moments. These have involved judges and advocates who appreciated new technologies and found ways to ensure privacy prevailed in a changing world. This week’s unanimous decision by the Supreme Court in the case of Riley v. California ranks with other key historical moments.More than in any other recent decision, the Supreme Court this week advanced privacy in a digital era characterized by ubiquitous computing.
As a result, the scales of justice shifted in a profound way toward a new ideal of privacy in a digital world. There is an important history for privacy that points in this direction and is worth appreciating. But it’s important to start simply by saying this: it was not just a historic week, but a very good week for privacy. A scale implies balance. The Supreme Court’s decision strikes the right balance between public safety and the privacy concerns of users of mobile technology.
This week, we have seen tremendous enthusiasm and excitement from more than 13 million students who are learning a new language. The language? Computer Science.
Across the country and around the world, students have been celebrating Computer Science Education Week by participating in Hour of Code events. In partnership with Code.org, Microsoft has been hosting Hour of Code programs at our retail stores and with our YouthSpark partners, witnessing the delight of students who are experiencing coding for the first time. This week, I had the opportunity to see this excitement firsthand when I met with students and teachers at Fairwood Elementary School in Renton, Wash. to present $10,000 in Code.org funding for tablets that will help students strengthen their computer science skills.
Posted by Brad SmithSenior Vice President & General Counsel, Microsoft Corporation
Microsoft is filing a formal complaint with the European Commission as part of the Commission’s ongoing investigation into whether Google has violated European competition law. We thought it important to be transparent and provide some information on what we’re doing and why.
At the outset, we should be among the first to compliment Google for its genuine innovations, of which there have been many over the past decade. As the only viable search competitor to Google in the U.S. and much of Europe, we respect their engineering prowess and competitive drive. Google has done much to advance its laudable mission to “organize the world’s information,” but we’re concerned by a broadening pattern of conduct aimed at stopping anyone else from creating a competitive alternative.
We’ve therefore decided to join a large and growing number of companies registering their concerns about the European search market. By the European Commission’s own reckoning, Google has about 95 percent of the search market in Europe. This contrasts with the United States, where Microsoft serves about a quarter of Americans’ search needs either directly through Bing or through our partnership with Yahoo!.
Amid the current public debates about government surveillance, this is a good day to step back and remember the Third of July.
Of course, the first question you might ask is, what happened on the Third of July?
Many Americans will recall, of course, that it was in Philadelphia at Independence Hall on July 2, 1776, that the colonies voted for their independence. And then it was two days later on July 4 that our Founders signed the Declaration of Independence.
But on the day in between, on July 3, 1776, something interesting happened as well.
Today, we are releasing our 2012 Law Enforcement Requests Report. This is our first Law Enforcement Requests Report. It provides data on the number of requests we received from law enforcement agencies around the world relating to Microsoft online and cloud services and how we responded to those requests. All of our major online services are covered in this report, including, for example, Hotmail, Outlook.com; SkyDrive; Xbox LIVE; Microsoft Account; and Office 365. We’re also making available similar data relating to Skype, which Microsoft acquired in October 2011.
We will update this report every six months.
In recent months, there has been broadening public interest in how often law enforcement agencies request customer data from technology companies and how our industry responds to these requests. Google, Twitter and others have made important and helpful contributions to this discussion by publishing some of their data. We’ve benefited from the opportunity to learn from them and their experience, and we seek to build further on the industry’s commitment to transparency by releasing our own data today.
This week, I had the opportunity to speak in Uruguay at the 34th International Conference of Data Protection and Privacy Commissioners. This conference brings together leading authorities on privacy from more than 50 countries, including many of the key government officials and regulators responsible for privacy policies around the world. It provides a great opportunity to engage in a dialogue about one of the most important topics facing our industry today. The theme of the conference was “Privacy and Technology in Balance,” a theme that describes well both the challenge we face and how we think about the goal.
In my remarks, I focused on a few key questions. First, does privacy still matter? And second, how has technology changed the nature of privacy? I also talked about the way we all need to come together – the technology industry, advertisers, government, publishers and others – to shape a thoughtful and consistent approach to privacy that respects the needs and expectations of consumers while balancing the many other benefits that today’s technology and use of data can provide.
Posted by Brad Smith & Horacio GutierrezGeneral Counsel & Deputy General Counsel, Microsoft
Today, Microsoft announced a patent cross-licensing agreement with Samsung that will provide coverage under Microsoft’s patent portfolio for Samsung’s mobile phones and tablets. The agreement also gives both companies greater patent coverage relating to each other’s technologies, and opens the door to a deeper partnership in the development of new phones for the Windows Phone platform.
In the context of all the attention intellectual property matters have received in recent months, it’s worth taking a moment to reflect on the meaning and impact of these agreements. The Samsung license agreement marks the seventh agreement Microsoft has signed in the past three months with hardware manufacturers that use Android as an operating system for their smartphones and tablets. The previous six were with Acer, General Dynamics Itronix, Onkyo, Velocity Micro, ViewSonic and Wistron.
Together with the license agreement signed last year with HTC, today’s agreement with Samsung means that the top two Android handset manufacturers in the United States have now acquired licenses to Microsoft’s patent portfolio.
Last month at an event on Capitol Hill, Microsoft pledged to put information on the Web that would enable anyone to determine for which patents we are the real party in interest.
As I mentioned in my blog post about the event, transparency regarding patent ownership is an important part of a well-functioning patent system. One of the fundamental objectives of the patent system is to provide notice regarding inventions – not only the nature of what has been invented but who owns the patent.
Earlier today, I participated in an event on Capitol Hill about the U.S. patent system and software patents sponsored by BSA│The Software Alliance and the National Association of Manufacturers. Panelists included representatives of tech companies, manufacturers, and start-ups, and it was interesting to see the extent to which all of us innovate in software and rely on the patent system to incentivize and protect those innovations. This is not surprising: we live in a digital world. Many things that used to be done mechanically or via hardware – such as throttle control systems – are now implemented in software.
Recent studies from the Department of Commerce and the Brookings Institution show that patents drive job creation, productivity, and economic growth today. Given the benefits of the patent system, it is important to ensure that it functions well. As I mentioned in my remarks today, there is no question that the U.S. patent system has tremendous strengths but also significant weaknesses. All of us – private companies, the USPTO, Congress and the courts – share responsibility for taking steps to improve the operation of the patent system. From Microsoft’s perspective, the key opportunities relate to increasing transparency, curbing litigation abuse, and improving patent quality. Specific reforms we support include:
A good deal of discussion at the World Economic Forum in Davos this week has focused on “The Great Transformation” and how technology, leadership and innovation can improve the state of the world for future generations. It’s a vital discussion. Young people represent our collective future. They will be our leaders, our doctors, our scientists, our teachers, innovators and entrepreneurs. But today young people face enormous challenges. While specific challenges vary around the world, it is clear that a fundamental challenge is emerging everywhere – an opportunity divide for young people. While some young people are prospering, others are struggling because they lack the education, skills or opportunities they need to succeed.
More than 100 million youth worldwide lack access to any sort of education and more than 77 million young people are unemployed. Unemployment rates are consistently higher for young people than any other group. There has been unprecedented change in recent years, from a surge in international trade that has fundamentally changed the global economy to major breakthroughs in science that have transformed the way we live. Technology has been a major driving force behind this change, and a major force for good in our economies and societies. But these forces have also created new challenges and caused new dislocations. And the rate of change isn’t slowing.
With 40 percent of all jobs in Washington state tied to trade, the Seattle region has long been described as “A Gateway to the Pacific.” That idea was at the forefront of conversation as business, civic and government leaders gathered last night for the Seattle Metropolitan Chamber of Commerce’s Regional Leadership Conference. I had the opportunity to address the audience about our region’s future.
I spoke about Puget Sound visionaries such as Thomas Mercer, whose 1854 vision of a canal to connect Puget Sound with Lake Washington and start to create a union of east and west – North America with the Pacific and with Asia – would become reality two generations later.
The United States faces a growing economic challenge – a substantial and increasing shortage of individuals with the skills needed to fill the new jobs the private sector is creating. Throughout the nation and in a wide range of industries, there is an urgent demand for workers trained in the STEM fields — science, technology, engineering and mathematics — yet there are not enough people with the necessary skills to meet that demand. Our nation faces the paradox of a crisis in unemployment at the same time that many companies cannot fill the jobs they have to offer. In addition to the short-term consequences for businesses and individuals, we risk these jobs migrating from the U.S., creating even bigger challenges for our long-term competitiveness and economic growth.
As an employer, we see these challenges first hand and are committed to doing what we can to help. One way we can help is to shine a light on these challenges and offer ideas and solutions. That’s why today we published a detailed whitepaper documenting ideas for a National Talent Strategy that would help secure U.S. competitiveness and economic growth. I also had the opportunity to discuss these ideas in a speech at the Brookings Institution today.
As 2012 draws to a close, we’re starting to see a number of “year-in-review” pieces recapping key developments in the tech industry over the past 12 months. One item that I think deserves to be near the top of these year-end lists is an issue to which we and others have been paying especially close attention.
We continue to strive to put privacy first for our customers, while recognizing that providing consumers with more choice and control of their privacy requires strong collaboration with a number of stakeholders. We often have a unique perspective in these discussions: We have billions of paying customers, as well as a thriving advertising business.
We’re looking ahead to 2013 to continue our efforts to put our customers front and center with respect to privacy, while also working with the World Wide Web Consortium (W3C), consumer groups, the advertising industry, and government officials to seek a clear path forward. But first, let’s look at some of the progress made this year, and what future success could look like.
Posted by Brad SmithGeneral Counsel and Senior Vice President, Legal & Corporate Affairs, Microsoft
Tomorrow, the Senate Judiciary Committee will consider the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 – the PROTECT IP Act. We support the goals and approach of this important legislation, and urge the committee to report it.
The PROTECT IP Act is aimed at providing new tools to challenge the proliferation of “rogue sites” -- Internet sites that are dedicated to infringing content or counterfeit goods. It would establish both governmental and private rights of action in an effort to address what the U.S. Chamber of Commerce estimates to be a multi-billion dollar a year problem that threatens U.S. creators and innovators, places U.S. consumers at risk, harms our economy and costs American jobs.
Posted by Brad Smith & Horacio GutierrezExecutive Vice President & General Counsel and Corporate Vice President & Deputy General Counsel, Microsoft
July 18 marked the effective date for the International Trade Commission’s order excluding from the U.S. market Motorola’s Android devices that implement Microsoft’s ActiveSync technology. In addition, Microsoft has secured two injunctions against Motorola devices in Germany for its infringement of other Microsoft patents.
Over the last few weeks, with the imminence of the ITC exclusion order, Google mounted a public relations and lobbying campaign deflecting attention from its refusal to honor its promise to standards bodies to license standards-essential patents on fair, reasonable and non-discriminatory (FRAND) terms, a practice that has prompted regulators on both sides of the Atlantic to investigate its conduct. Unfortunately, we have no reason to believe that Google’s diversionary tactics will cease any time soon, and in fact expect more of them in the future.
Posted by Brad SmithExecutive Vice President & General Counsel, Legal & Corporate Affairs, Microsoft
One of the most important policy discussions emerging this year is the effort to update privacy laws in Europe and the United States. This is welcome news. Key laws governing privacy and security on both sides of the Atlantic have not been overhauled in a significant manner for two to three decades, yet technology – and society – has changed dramatically.
This morning I spoke at the International Association of Privacy Professionals’ Global Privacy Summit about these efforts. At Microsoft, we support the work here in the U.S. and in Europe to update privacy laws to reflect changes in technology, and the many new and different ways people and organizations gather and use information.