back to article Microsoft's Brad Smith on encryption: Let the politicians decide

Microsoft's president and chief legal officer Brad Smith wants to let the politicians decide, when it comes to the tricky balance between privacy, security and technology. Speaking at the opening ceremony of RightsCon in San Francisco, Smith trod a careful line in front of the audience of digital rights activists, praising …

  1. Doctor Syntax Silver badge

    "only four-and-a-half per cent of the world's population lives in the United States. But technology is global."

    Perhaps he didn't need to be explicit about the corollary. If a business wants to address the other ninety-five-and-a-half per cent it will need to base itself where local laws allow it to behave in a manner acceptable to those potential customers. That's something that legislators of each country will need to bear in mind.

    1. bazza Silver badge

      It could be that if the US legislators get it wrong it may be impossible for some sorts of American tech companies to do global business. Companies like Google, Apple, Facebook, MS, Amazon.

      For Google and Facebook and maybe MS they have the option of leaving the US altogether. MS are even conveniently by the Canadian border... But Amazon and Apple rely on physical premises, meaning they can't completely 'leave'.

      The first iPhone was GSM, mostly because that met the global market whilst CDMA/CDMA2000 didn't. So at least one of these companies has form in ignoring the US market.

      1. big_D Silver badge

        Leaving completely. Moving the HQ isn't enough, currently, with FISA, even a presence (a single office, with a single employee) in the USA is enough to get press ganged into helping the US Government.

        1. Doctor Syntax Silver badge

          "even a presence (a single office, with a single employee) in the USA is enough to get press ganged into helping the US Government."


          "Sorry, we don't have anyone with those skills here but if you really insist I could try. Have you got a spare in case I break it?"

          1. big_D Silver badge

            Look at the current MS vs. US Justice case.

            Here, there is a server in Ireland, owned by an Irish company operating under EU and Irish Law. The US Justice Department says, that that is all null and void, because the Irish company is a subsidiary of Microsoft Corp. USA and therefore the Irish company doesn't have to follow Irish law, it can damn well hand over the data that US Justice wants, because AMERICA!

            1. Doctor Syntax Silver badge

              "because the Irish company is a subsidiary of Microsoft Corp. USA "

              Of course if the US is careless enough to arrange its economy that way Microsoft Corp USA could be just a subsidiary of a Swiss corporation with administrative HQ in Ireland and young US engineers applying for 2 year visas to work at the S/W development centre in India. And the Azure servers? In Germany with a German company as data trustee.

      2. Doctor Syntax Silver badge

        "American tech companies to do global business. Companies like Google, Apple, Facebook, MS, Amazon....But Amazon and Apple rely on physical premises"

        Who says they have to remain American?

        Apple depend on physical premises in China where stuff is made but they don't even own those premises. They may have a large vanity building in the US but they'd probably find a purchaser for it if it became preferable to move offshore.

        Amazon has distribution centres and data centres all over the world. Why should the US ones be more special than those elsewhere?

        Global businesses can go where the legislative environment suits them but if they're big enough simply threatening to move is sufficient. HSBC has been mulling over moving out of London for years - it keeps the UK regulators from making any moves that would really upset it.

  2. Youngone Silver badge

    The problem people have with the privacy and security issue is that the US government is not an honest actor.

    They are quite happy to ignore their own rules when it suits them, so why would they hold to the rules of foreign lands?

    1. Intractable Potsherd Silver badge

      I was going to post something similar - it would be nice if the statement that "... decisions are best made by people that are elected by people ..." was true.

  3. Anonymous Coward
    Anonymous Coward

    > ... there is no authority greater than moral authority.

    Mathematics don't care one jot for authority, however.

    1. trottel

      And not just that... People have failed for thousands of years to define what "good" or "bad" is and everyone sort of works with their own definition. So there is no "moral authority" as such. Or worse, everyone believes they are or belong to "the" moral authority. And the stronger those believes get, the less of a discussion there will be, it will become merely shouting their views.

      Socrates said "I know that i know nothing". It is helpful to repeat that to oneself once in a while... and act accordingly: seeking knowledge instead of just trying to spill ones thoughts and want to convince others to accept them no matter what.

      The older i get, the more i become a humanist... Funny how things go.

    2. nijam

      > ... there is no authority greater than moral authority.

      But unfortunately morals and ethics are pretty close to being simply a matter of opinion. Courts uphold the law (or so we'd like to hope) and lynch mobs uphold morals.

  4. Gray
    Big Brother

    Hungry 'gators

    "when it comes to the tricky balance between privacy, security and technology."

    Obviously his remarks are intended to pacify government observers. Leaving online privacy issues to the politicians is little more than tossing helpless chickens to voracious alligators. The only hope for global users is that technology continues to stay one step ahead of government interception and surveillance. Politicians and governments will justify control and punishment. It's only the degree to which they do it, or admit to it, that differs.

  5. allthecoolshortnamesweretaken

    "The answer lies in focusing on "timeless values," which include freedom of speech and privacy."

    I wholeheartedly agree - so maybe dial down the telemetry a bit, mmmkay?

  6. Will Godfrey Silver badge

    OK, got it.

    A man with zero credibility, working for a company with zero credibility want's us to leave everything in the hands of a government with zero credibility.

    I have zero confidence in that idea.

  7. Sean Kennedy

    "Let the politicians decide"?

    That sounds like a punchline to a terrible/terrifying joke. Let the politicians decide? Have you been watching the primaries, there Brad? Do any of those folks seem like the kind of people who are swayed by "facts"? Have you seen any dump trucks and tubes lately? Brad, have you paid *any* attention, at all, to how over government works...ever?

    He may very well have said, "I'm bought and paid for, so treat my opinion accordingly", because honestly? That's all I heard.

    1. Captain DaFt

      "That sounds like a punchline to a terrible/terrifying joke. Let the politicians decide? Have you been watching the primaries, there Brad?"

      Forget the primaries, look at what the ones already elected are doing.

      Apparently, these gits just got around to hearing about Harry Potter:

      A bill to recognize magic as a "rare and valuable art form and national treasure" was introduced into the House of Representatives Tuesday.

      Representative Pete Sessions (R-TX) introduced HR 642. Rep. Steve Stivers (R-OH), Rep. Pat Meehan (R-PA), Rep. Dan Donovan (R-NY), Rep. Charlie Dent (R-PA), Rep. Ken Buck (R-CO), and Rep. Mike Simpson (R-ID) are co-sponsors. It has been referred to the House Committee on Oversight and Government Reform.

    2. Anonymous Coward
      Anonymous Coward

      "Let the politicians decide"?

      Because we have paid the politicians a lot of money to do what Microsoft demands...and lobbied them to death behind closed doors to the same end...

      Also, is this Brad Smith the man who is paid a lot of money to justify Microsoft's behaviour in legal terms?

      And he is talking about morality?

      1. Mark 85 Silver badge

        Re: "Let the politicians decide"?

        There is a certain irony there isn't there? The main legal beagle from MS talking about privacy... I wonder if he's actually ever read the EULA that his department has to approve.

        Icon -------> Well... just because we don't have an irony icon.

        1. Graham Marsden

          Re: "Let the politicians decide"?

          Remember: An honest politician is one who *stays* bought...

  8. David 132 Silver badge

    Please, Mr Politician..

    ...could I have my rights?

    I mean, only if it's convenient to you. I wouldn't want to be absolutist about this or anything.

  9. Vimes

    He also noted that Microsoft has sued the US government three times on related issues, making a pointed reference to the US government's effort to force Microsoft to hand over data held on their servers in Ireland.

    And yet the late great Caspar Bowden was sacked (fired?) by Microsoft when he dared to raise legal issues surrounding FISA (years before Snowden and possibly after Microsoft started helping the NSA via PRISM).

    Brad Smith has zero credibility IMO.

  10. btrower

    Must not be possible...

    We need to make technological solutions that make it technically impossible for the government to do what it wants. We need to couple that with severe legislation that provides harsh penalties for anyone attempting to circumvent measures people take to ensure their privacy.

    It is possible to design a system that does not depend upon trusting one single particular bad actor. We could have mechanisms that make it technically feasible to unlock some things, but only with an m of n number of actors who can mutually distrust one another.

    The exposure of current systems is well beyond anything reasonable and we are coming to grief on an ongoing basis because of it.

    Bottom line, as can be seen by other comments here: You absolutely *cannot* trust the government with this.

    1. Vimes

      Re: Must not be possible...

      We need to couple that with severe legislation that provides harsh penalties for anyone attempting to circumvent measures people take to ensure their privacy.

      That assumes that the law will always be enforced.

      Just look at the Data Retention Directive: when this was thrown out at the European level the government seemed to simply ignore the matter for quite some time.

      There are probably other examples I could list, but the point is this: we can have as many laws as we like, and they can have the harshest penalties imaginable. All that is for nothing however if they aren't actually enforced. And they often aren't. *cough*Phorm*cough*

      1. btrower

        Re: Must not be possible...

        @Vimes: Agree that legal changes are insufficient. As far as I am concerned government agents are already well over existing legal lines and I don't see any of them being trotted off to the slammer.

        Lots of things will have to change and unseating the large number of powerful incumbents will be a trick. However, the consequences of wholesale surveillance and tampering by the state are too dire to ignore.

  11. Anonymous Coward
    Anonymous Coward

    Let the politicians decide

    Spoken like a man whose politicians haven't engaged in an obvious cover up of a child abuse investigation.

  12. Len Goddard

    Let the politicians decide

    As a group I can think of few who would be less qualified to even have an opinion on this matter.

  13. scrubber

    Fuck the fuck off.

    Every time anyone wants to talk to another person they should have to register the fact with the government so it can be recorded and searched in future if necessary.

    What, too far?

  14. Anonymous Coward
    Anonymous Coward

    I smell a rat

    Could it be that Gates & friends are a bit more on the fence on this because they are still shareholders of an entity that is ALREADY handing off data?

    Given Win10, not entirely impossible IMHO.

  15. moiety

    Well that's Microsoft's stance on privacy out in the open then; as if we couldn't tell from the telemetry.

    Personally, I'd already made the decision on W10 (never!); so didn't really need another showstopper.

    So he wants to let the one group of people who have been loudly proving in the press for months that they don't understand either maths or the basics of the issues; to decide on the future of the field. Nah, let's not do that.

  16. Alister Silver badge

    "decisions are best made by people that are elected by people."


    Does anybody really think that our elected representatives are safe to be allowed to make decisions on any level greater than what to have for breakfast?

    Is Brad thinking of running for office soon?

  17. Naselus

    This won't be popular to say....

    But he's kind of right tbh.

    Politicians are, in theory, accountable to the general public. Apple/Microsoft/Google/whoever are not accountable to the general public; they're only accountable to their own shareholders. So yeah, it's meant to be the politicians' job to decide on this, not Apple/MS/Google - even if Apple/MS/Google's decision is better than the one that the politicians come up with.

    The fact that US politics is hopelessly delinquent and makes little effort to follow the popular will (to the point where Donald Trump looks electable to a significant portion of the population) doesn't really change the fact that private corporations aren't supposed to be in the business of deciding what the law ought to be. If Apple decide that they don't need to follow encryption laws, then they may also decide that they don't see why they should follow antitrust laws, or health and safety laws, or bother filing honest accounts.

    Of course, we might point to the fact that Apple/MS/Google/whoever seem to spend an awful lot of money lobbying to get a say in what other laws are. But I'd say that it'd be better to make that particular practice illegal (since the US political system is now basically just legalized bribery) rather than pointing to one problem with the present system and using it to justify allowing corporations to make up whatever laws they happen to fancy following today, tbh.

    I think that the US government is hugely overstepping it's bounds here in a dangerous and unconstitutional manner which threatens privacy on a global scale, and I think Apple are firmly in the right by saying that they shouldn't be made to help crack encryption on personal phones... but just because their motives are 100% right doesn't mean that the principle of refusing to do so is also right. It is ultimately the job of politicians to decide this. If you don't like the answer that those politicians come up with, well, you can vote to replace them every 4 years. Why not try doing that instead of continuing to vote them in and then complaining that you hate every choice they make.

    1. Graham Marsden

      Re: This won't be popular to say....

      > Politicians are, in theory, accountable to the general public.

      Yes, in theory. However the fact of the matter is that in the USA they're pretty much bought and paid for by big businesses.

      As the old saying has it: If voting could actually change anything, they'd ban it.

  18. Dan Wilkie

    It's a small picture and he looks tiny, but to my eyes - is he shirtless and wearing a motorcycle helmet???

  19. Jeffrey Nonken Silver badge

    "Smith reflected Bill Gates' comments about there being a necessary balance between securing conversations and making sure that law enforcement can do its job."

    Huh. Didn't realize it was Microsoft's job to make law enforcement's job easier.

    And to be clear, I know he was saying possible, not easy. But funny thing, police were able to do their jobs before smartphones were around. Suggesting that police can't operate without access to smartphone data is several kinds of fallacy.

    Not a fan of Apple's walled garden approach. But will take them over Microsoft any day.

  20. Gio Ciampa

    ...and (presumably) paying no tax in any of the locations mentioned...

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