Microsoft’s top lawyer on Wednesday called upon the US government to act on “unfinished business” a year after the Guardian and the Washington Post first broke news of the extent of the National Security Agency’s cyber-spying operations.

In an often toughly-worded blogpost, Microsoft general counsel Brad Smith set out five areas where he believes the government needs to take more action in the wake of Edward Snowden’s revelations. While there had been some “initial positive reforms,” Smith said, “the reality is clear. The US government needs to address important unfinished business to reduce the technology trust deficit it has created.”



Snowden’s revelations had shown that the government was “not just seeking a relatively small amount of content” via legal orders, said Smith.

“It’s now apparent that the government intercepted data in transit across the internet and hacked links between company data centres. 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.



“With the advent of mobile devices and cloud services, technology has never been more powerful or more personal. But as I encountered in virtually every meeting during a recent trip to Europe, as well as discussions with others from around the world, people have real questions and concerns about how their data are protected.

"These concerns have real implications for cloud adoption. After all, people won’t use technology they don’t trust. We need to strike a better balance between privacy and national security to restore trust and uphold our fundamental liberties,” he wrote.

Smith said the US should:



• recognize that US search warrants end at US borders. The top Microsoft lawyer said his company was concerned about governmental attempts to use search warrants to force companies to turn over the contents of non-US customer communications that are stored exclusively outside the United States.



“The US government wouldn’t stand for other governments seeking to serve search warrants within American borders to seize the content of US citizens’ emails without going through US legal process. Why should it expect other governments to react any differently?” he wrote.



• end bulk collection of data. In March, President Barack Obama proposed tto end the NSA’s bulk collection of phone records in the US, limit future collections and hand over the task to telecoms companies. Smith said Microsoft had never received a bulk order but he believes the USA Freedom Act should be strengthened “to prohibit more clearly any such orders in the future.”

• reform the Foreign Intelligence Surveillance Act (Fisa) court. The FISA court oversees requests for surveillance warrants made by the NSA. It acts in private. Smith said the court needed to be more open and to introduce “the adversarial process that is the hallmark of a fair judicial system.”

“There remains a fundamental truth about legal disputes: a judge who hears only one side of a case is less likely to render a just result. Congress needs to recognize and act on the need for FISA Court reform,” he wrote.



• commit not to hack data centres or cables. As first revealed by The Washington Post, the NSA has hacked into tech firms’ systems by accessing cables outside their buildings. Google, Microsoft, Yahoo and others have since gone on to encrypt more of their data in order to thwart such attacks but “more than seven months” on “the executive branch remains silent about its views of this practice,” Smith wrote. “Shouldn’t a government that prosecutes foreigners who hack into US companies stop its own employees from hacking into such businesses? Why must we continue to wait for an assurance on this issue?”



• continue to increase transparency. “Earlier this year, we won the right to publish important data on the number of national security-related demands that we receive. This helped to provide a broader understanding of the overall volume of government orders. It was a good step, but we believe even more detail can be provided without undermining national security,” wrote Smith.



Smith said an “international effort” was needed to restore trust and “strike the right balance between privacy and security”. He said Microsoft was pushing for an international legal framework to protect privacy online.

“The US has both a responsibility and an opportunity to show new leadership on these issues. It was 225 years ago this Sunday that James Madison stood up in the first Congress and proposed the Bill of Rights, including what became the fourth amendment to our constitution. He built on English law and colonial experience to preserve for future generations the right of people to be secure from unreasonable government searches.

"But by definition it is up to our own generation to preserve this fundamental constitutional protection. The advance of technology makes these issues even more important. Now is the time to act,” wrote Smith.



Microsoft was one of the companies named in Snowden’s documents as having worked closely with the NSA to circumvent encryption on its users' communications. The agency also boasted of tripling the amount of data it was collecting from Microsoft-owned Skype video calls. Microsoft said at the time that it cooperated only when legally compelled.



On Thursday, companies including Reddit, Mozilla and DuckDuckGo, as well as organizations like the Electronic Frontier Foundation, Fight For the Future (FFtF) and Greenpeace are planning a day of action called Reset the Net to highlight online privacy after the Snowden revelations.



Evan Greer of FFtF said: “It's clear that even the largest tech companies are responding to the blistering public outcry around surveillance and the demand for services that aggressively fight for their security and their human rights.”



“Edward Snowden's bravery, real journalists' reporting, and intense grassroots organizing has shifted public opinion profoundly on this topic, and created an environment where everyone wants to be on the side of privacy. That can only spell good things for the future of the internet, but it will be important in the weeks to come that we judge companies, politicians, and ourselves, by actions and not words.”

