Technology companies and the federal government are locked in an escalating legal battle over data surveillance and consumer rights, said Microsoft’s General Counsel Brad Smith at a Law School forum Tuesday.

Smith, the executive vice president for legal and corporate affairs at Microsoft, spoke to a packed room in Wasserstein Hall about the erosion of trust in technology in light of recent reports of government digital surveillance.

“You cannot restore trust without greater transparency. Now the question is, how?” he said.

Conversing with Law School Professor Jonathan L. Zittrain, who moderated the forum, Smith argued that the U.S. government must respect both domestic and international privacy laws, instead of unilaterally and opaquely obtaining data. Microsoft and other technology companies filed a lawsuit against the government earlier this year, claiming that the U.S. government should not be allowed to snoop in emails and other files housed overseas, he said.

“When should the United States government be able to reach into a data center built in another country to get the data inside?” he asked. “That really goes to the heart of sovereignty. It basically means that whenever an American company builds a building in another country, that building is subject to the sovereign reach of the United States government.”

Smith also discussed the potential for international conflict if, for example, China or Iran built a data center in the U.S. to shelter files from their country of origin.

“This is where one creates a real risk of fostering chaos on the internet,” he said. “Are people going to continue to be able to have the confidence that their rights are going to be protected by their own constitutions? Or is it something that will be overridden by other governments and their laws?”

In light of the day’s midterm elections, Smith predicted that a continued legislative stalemate would place the burden of mediation between technology companies and the government on the federal courts.

“One of the defining trends of our time, polarization of politics, is leading to a gridlock[ed] Congress,” he said. “We’ll see what happens in the elections today, but in an era of gridlock, we should probably expect more court action.”

David E. Sanger ’82, chief Washington correspondent for The New York Times, asked whether the battle between private data encryption and government code-breaking would amount to a technological arms race.


“In the tug-of-war between government and technology, the arms race has already started,” responded Smith. “In the absence of any real discussion, we’re just going to have an arms race in perpetuity.”