Responding to Obama, Microsoft calls for international pact on digital surveillance

Brad Smith, Microsoft general counsel

Brad Smith, Microsoft general counsel

President Obama’s speech last week outlining his plan for reforming the NSA left many in the tech industry wanting much deeper reforms. One of them is Microsoft, which has had its services targeted by the NSA.

In a post this week responding to Obama’s speech, Microsoft General Counsel Brad Smith calls for an “international legal framework” to restrict the ability of governments to use digital surveillance techniques against each other’s citizens.

Smith said the changes announced by Obama represent “positive progress” on some key issues, but he said “the time has come for a broader international discussion.” He called for an international agreement that would “ensure that governments seek information about the private citizens of the other participating countries only pursuant to legal rules and due process,” he writes.

To replace the lost intelligence-gathering capabilities, Smith suggests that the same agreement should create a pathway to expedite international requests from law enforcement agencies that still preserve citizens’ right to privacy.

“For example, if the authorities in one country believe there is a threat that needs to be investigated by accessing data about private citizens in another country, they could use this new, streamlined process to seek this information,” Smith said. “They would need to respect the legal rules and safeguards in this second country, including measures that ensure that the requesting government adheres to established due process standards.”

The way he sees it, part of the reason that countries have turned to warrantless surveillance in this day and age is that they are hamstrung by existing agreements, which don’t allow for rapid reactions in the event law enforcement agencies need digital information.

The agreement would have incentives for participation built in: signatories would be assured that their citizens would be protected from surveillance by other countries that were also party to the agreement, while still being able to conduct unchecked surveillance on citizens in countries that aren’t covered.

Smith seems to be right on the money: President Obama’s speech about his plans for the NSA made it quite clear that he was concerned about unilaterally cutting back on the agency’s intelligence-gathering operations overseas because other countries would not be bound by the same decision.

Of course, there’s one problem with his proposal: the success of such a system relies on the agreement of a number of parties which aren’t necessarily in the business of always agreeing with one another. Even President Obama couldn’t say with certainty that the United States would ratify such an agreement, given the partisan divisions in Congress, and the fact that such an agreement would necessarily restrict the activities of America’s intelligence services.

Still, if such a agreement was adopted, it would be key for maintaining confidence in U.S.-based tech companies, which are facing new regulations in foreign countries in light of revelations about the NSA’s surveillance practices.