Executive Briefing December 8, 2017

TOP STORIES: Microsoft v. DoJ

On Thursday, the DoJ filed its brief in the Microsoft warrants case.  Microsoft will file its brief next month with oral arguments scheduled for February in the Supreme Court.  Related, the EU announced it will file an amicus brief supporting neither Microsoft nor the U.S government to raise awareness regarding EU data protection rules.

  • Politico Morning Tech: DOJ Brief on Microsoft Case

    Politico’s Morning Tech newsletter noted that the Department of Justice filed its opening brief with the U.S. Supreme Court on Thursday in Microsoft’s warrant case. The newsletter noted that Microsoft has argued for a legislative solution, such as ICPA, to address the issue. The outlet quotes from Brad Smith’s October cert decision blog regarding the potential for reciprocity should the Supreme Court side with the U.S. government in the case.

  • Reuters EU to intervene in Microsoft’s U.S. Supreme Court data protection case

    Reuters reported on today’s announcement by the European Commission that it will intervene in Microsoft’s warrant case to ensure that “EU data protection rules on international transfers are correctly understood and taken into account by the U.S. Supreme Court.” The Commission said it will be submitting an amicus brief in support of neither party to the Supreme Court. Reuters closes its article with a statement from Microsoft Vice President for EU Government Affairs John Frank that Microsoft welcomes the EU’s involvement in the case.


  • “[Existing law enables the government to] compel a U.S. service provider to disclose electronic communications within its control, regardless of whether the provider stores those communications in the United States or abroad.”

Opening brief by the Department of Justice

  • “Given that the transfer of personal data by Microsoft from the EU to the U.S. would fall under the EU data protection rules, the commission considered it to be in the interest of the EU to make sure that EU data protection rules on international transfers are correctly understood and taken into account by the U.S. Supreme Court”

European Commission


Recode Facebook’s New Messenger App for Kids Has Congress Asking About Privacy

Facebook says it’s new app for youngsters — called Messenger Kids — lets users under age 12 “connect with people they love but also has the level of control parents want.” Lawmakers in the U.S. Congress, however, still have their doubts. To Democratic Sens. Ed Markey and Richard Blumenthal, Facebook’s new children-focused chat app “has the potential to provide a safe space for children entering the digital world, but it does raise a number of privacy and security concerns.” That’s why they’re now demanding that Facebook explain clearly what data it’s collecting about its new, young users, and what it’s planning to do with it. Specifically, Markey and Blumenthal asked Facebook on Wednesday to clarify if it is sharing kids’ personal information with “brand advertisers or any other third party.” They also questioned whether Facebook is collecting and storing information about device location. And the duo of Democratic members of Congress urged Facebook to address whether its new Messenger Kids app will be walled off from the internet, so that youngsters can’t click on links that might be harmful or malicious.


Office of Governor Scott Walker Press Release Governor Walker Calls on the Federal Communications Commission to Expand Broadband by Advancing Television White Space Technology

MADISON – Governor Scott Walker today (Dec. 8) called on the Federal Communications Commission (FCC) to finalize rules increasing access to broadband internet by advancing television white space technology. Television white space is the unused spectrum between broadcast television stations which can deliver high-speed internet to underserved areas of Wisconsin.  “Fast, reliable internet access has the power to help businesses reach new markets, create jobs, and improve educational opportunities by connecting students in innovative and engaging ways,” said Governor Walker. “Our budget provides an additional $35.5 million for broadband expansion, but there is an opportunity to do more, which is why we are calling on the FCC to finalize rules advancing this technology.”

New York Law Journal In ‘Microsoft’, SCOTUS Will Review Extraterritorial Reach of Search Warrants

New York Law Journal published a contributed piece by H. Christopher Boehning and Daniel J. Toal, partners at Paul, Weiss, Rifkind, Wharton & Garrison LLP, examining Microsoft’s warrant litigation and the potential implications of a Supreme Court ruling in the case. The duo highlight that the case has drawn both domestic and overseas attention, and note that the “Supreme Court’s eventual decision in this matter could have a significant impact on how U.S. companies, not just Microsoft, conduct business in this modern age.”

Axios The coming trade war over data

Axios published a piece examining the rise of conflicting laws, trade agreements, and regulations governing cross-border data transfers around the world. The piece highlights the increase of data localization laws around the world, and concludes with a focus on the growing impact of law enforcement request requests for data, notably Microsoft’s warrant case and similar challenges by Google.

Gizmodo Trump Officials Say Warrantless Surveillance Program Will Continue Whether Congress Approves It This Year or Not

Having come to the realization there may be little hope for renewing the warrantless surveillance program known as Section 702 by the end of the month, Trump administration attorneys now contend there’s a legal basis for continuing the program through next April. Debate over potential reforms to the program, enacted under the FISA Amendments Act of 2008, continue in Congress, but have been largely overshadowed by Republican efforts to overhaul the tax code.

The Hill Protecting Intellectual Property in America Is Harder Than Ever

Ever feel like you’ve come up with a million-dollar idea that could make people’s lives easier or more productive? Unfortunately, American inventors are discovering that developing the next great idea here is not worth the trouble, and they are either giving up or looking abroad to places like China for protection. Innovative new ideas have always fueled America’s dynamic economy. For courageous individuals willing to go out on a limb with their invention, our strong patent system has always provided the safety net — until now.

The Hill SCOTUS Justices Are Ready to Tackle Privacy Rights in the Digital Age

The Supreme Court heard arguments Wednesday in Carpenter v. United States. But even before the attorneys and spectators assembled that morning at 1 First Street, it was clear this would be a monumental year for digital privacy rights at the Court. This case will not be decided in a vacuum, and it appears that the justices appreciate both the magnitude of the moment and the complex nature of the problem that they have taken on. To understand the significance of this case, it is helpful to consider the history leading up to Carpenter and the points raised at the Court on Wednesday.


American Enterprise Institute (AEI)

  • Blog post on digital infrastructure: Visiting fellow Shane Tews argued that “smartphones, smart TVs, and other devices need network access to support the delivery of video streaming and web-based content — and they need a network and digital infrastructure that can support the significant increase in digital entertainment and data consumption.” She added, “Our current connectivity has insufficient capacity and cannot withstand the demand of the technologies of the future. We will need more bandwidth to boost capacity, efficiency, quality, and coverage for connectivity.” (AEI BLOG – Investing in 5G and the next-generation, digital-age infrastructure, By Shane Tews, December 1, 2017)

Brookings Institution

Information Technology Industry Council (ITI)         

  • Blog post on workforce skills: Senior manager Karolina Filipiak wrote that “As our workplaces evolve and adapt to these new technologies, so must our workforce. ITI and our members do not plan to sit idle: It is in our DNA to find solutions to ensure we equip America’s current and future workforce with the skills they need to succeed.” She added, “And while the tech sector is committed to strengthening the skills of the American workforce, success cannot be achieved by our industry alone. Policymakers must also make a concerted effort to better prepare U.S. students and workers alike.” (ITI BLOG – Preparing Our Workers for the Jobs of Tomorrow Starts Today, By Karolina Filipiak, December 1, 2017)


  • Statement on House Resolution on public-private partnerships in STEM education: President and CEO Linda Moore stated, “The U.S. faces a significant and growing computer science skills gap that is leaving too many of our young people unable to secure the good-paying job opportunities available to them in this field. In fact, by 2020 there will be one million more computing jobs nationally than there will be graduates to fill them, resulting in a $500 billion opportunity gap.  Neither the private sector nor policymakers should rest until computer science and STEM courses are taught in every school in America.” She added, “In addition to governments making greater investments in computer science education at the local, state, and federal levels, the tech industry must also do its part to expand public-private partnerships that help bring computer science education to more communities across the country.” (TECHNET STATEMENT – TechNet Welcomes House Resolution Promoting Public-Private Partnerships In Computer Science Education, December 1, 2017)


  • “The Supreme Court’s decision in Microsoft could alter other business practices. As many companies move away from on-premises installations of applications and toward Cloud-based solutions such as Google’s G Suite and Microsoft’s Office 365, companies, especially those based outside the U.S., often consider the likely reach of the U.S. government. A Supreme Court ruling rejecting Microsoft’s position could cause companies to reconsider Cloud-based solutions controlled from the U.S. because of a concern over increased exposure to electronic data collection by U.S. regulatory and law enforcement agencies.”

H. Christopher Boehning & Daniel J. Toal, partners, Paul, Weiss, Rifkind, Wharton & Garrison LLP

  • “It is particularly jarring to hear former government officials and other commentators who have criticized President Trump’s assault on our democratic norms nonetheless urge that Congress grant the government vast, unchecked surveillance authorities… An untold amount of private data on Americans derived from Section 702 is at the fingertips of FBI agents and Intelligence Community agents officers. One can simultaneously respect the professionalism of these people and be deeply concerned that a few of them will simply do what the President says. The constitutional implications of Section 702 are significant enough to require external checks, regardless of who is president.”

Sen. Ron Wyden

  • “Adding independent authorisation for communications data requests will make the police more effective, as corruption and abuse will be harder. It will improve operational effectiveness, even if less data is used during investigations and trust in the police should improve,” said the ORG’s executive director Jim Killock.”

Jim Killock, executive director, Open Rights Group

  • “The Interior Minister’s plans sound like an Orwellian nightmare. Soon all flats in Germany will be equipped with devices which are potential wiretaps… We need to think really hard about the fact that we are a country with two dictatorships in its recent history… Do we want to live in a land where there is no privacy and where the state can interfere wherever it is technologically possible?”

Konstantin von Notz, deputy faction leader, the Green Party

  • I’m voting no because I believe that this [House Intelligence Committee] bill sets up a false choice between whether or not we can be secure, or whether or not we can protect our rights to privacy, especially under the Fourth Amendment… Benjamin Franklin famously quipped, and I’m amazed that he has not yet been quoted today, that those who would trade privacy for security deserve neither… I find that the weight of this bill trades off privacy for security, and I believe that is a false choice because I believe we can have both.”

Rep. Denny Heck

  • “The implication is that the government can use its legal authority to secretly ask a US-based company for technical assistance, such as building an encryption backdoor into a product, but can petition the Foreign Intelligence Surveillance Court (FISC) to compel the company if it refuses.”

Zack Whittaker, reporter, ZDNet

  • “The line between content and routing is clear in practice, and recognizing this difference strikes a sensible balance that makes routing searches reasonable, with or without the trespass… The correct approach in both cases is to push the Kethledge line by allowing the government to track a defendant with both GPS and phone data, so long as it can examine the content of any seized information only after it establishes the probable cause needed for a warrant.”

Richard Epstein, professor of law, New York University

  • “Everything people do digitally, they should assume that never, ever goes away… There is going to be an electronic footprint in the sand somewhere. Maybe people feel more secure in their personal safety… but the trade-off is you are going to lose your expectation of privacy in electronic communications… That balancing has been going on for years.”

Larry Landis, executive director, Indiana Public Defender Council