Executive Briefing January 19, 2018

TOP STORIES: Microsoft vs. DoJ — Supreme Court Amicus Briefs

Yesterday, 23 amicus briefs supporting Microsoft’s case were filed with the Supreme Court by 288 signatories.  The diverse group of supporters include bi-partisan Members of Congress, European lawmakers, technology companies as well as legal scholars and trade associations.  Collectively, 37 countries are represented in the briefs.

Microsoft President and Chief Legal Officer Brad Smith published a blog post entitled “Something extraordinary happened in Washington, D.C. yesterday” explaining the significance of the filings.

Here are some additional resources on this news:

  • Amicus briefs are here
  • List of all signatories to briefs is here
  • More information on the case is here


  • “Everyone on both sides of this case agrees that these are real problems that need real solutions. But they need to be crafted with a scalpel, not a meat cleaver. And as so many groups across the political spectrum and countries now agree, let’s hope the Supreme Court leaves it to Congress to do just that.”

Brad Smith

  • “U.S. companies are the world leaders in cloud storage. That lead is built on trust, which has already been shaken by Edward Snowden’s revelations about U.S. surveillance… It will evaporate entirely the moment this Court directs that U.S. companies must disclose emails stored in foreign nations even when doing so would violate the data-privacy laws of those nations.”

Microsoft’s opening brief

  • “This case has global implications that extend far beyond the American technology industry… Endorsing the Justice Department’s position would affect virtually every cross-border data transfer, set dangerous international precedent, and have far reaching consequences for the millions of businesses represented by amici.”

Amicus brief of EU trade organizations


New York Times Congress Approves Six-Year Extension of Surveillance Law

WASHINGTON — The Senate on Thursday voted to extend by six years a law that authorizes the National Security Agency’s warrantless surveillance program, essentially ending a cycle of debate over wiretapping and privacy that began with the leaks in 2013 by Edward J. Snowden, a former intelligence contractor. The vote, 65 to 34, approved sending to President Trump a bill to keep through 2023 an activity that traces back to a once-secret program created by the George W. Bush administration following the terrorist attacks of Sept. 11, 2001. Congress first legalized it in 2008 by enacting a law called Section 702 of the FISA Amendments Act.


Gizmodo Nearly Everyone Backs Microsoft in Landmark Email Privacy Case – Except the DOJ

The case began in 2013, when Microsoft challenged a warrant for emails stored in a data center in Ireland. The company argued that a warrant was not sufficient to demand emails stored outside the United States, an argument that the Justice Department has fought against all the way to the Supreme Court. Hundreds of organizations signed 23 amicus briefs supporting Microsoft yesterday, displaying broad support for the company’s position that, under current law, the DOJ must seek access to the emails through a treaty process with Ireland, not a warrant issued under the Electronic Communications Privacy Act.

Wall Street Journal The Antitrust Case Against Facebook, Google, and Amazon (subscription)

Standard Oil and Co. and American Telephone and Telegraph Co. were the technological titans of their day, commanding more than 80% of their markets. Today’s tech giants are just as dominant: In the U.S., Alphabet Inc.’s Google drives 89% of internet search; 95% of young adults on the internet use a Facebook Inc. product; and Amazon.com Inc. now accounts for 75% of electronic book sales. Those firms that aren’t monopolists are duopolists: Google and Facebook absorbed 63% of online ad spending last year; Google and Apple Inc. provide 99% of mobile phone operating systems; while Apple and Microsoft Corp. supply 95% of desktop operating systems.

Tech Crunch Russian hackers are targeting U.S. Senate email accounts

According to a new report, the same group that hacked the Democratic National Committee actively targeted the U.S. Senate through the latter half of 2017. The revelation comes out of a new report from Trend Micro, a Japanese firm that has revealed similar phishing schemes taking aim at foreign governments in the past. As the security report details, the activity began in June 2017 and attempted to compromise a lawmaker’s credentials through a phishing site designed to look like the Senate’s internal email system.

Recode The Supreme Court could soon clear the way for states to impose new online sales taxes

The Supreme Court is set to decide the future of online sales taxes. The nation’s justices agreed on Friday to hear a battle between South Dakota and the e-commerce site Wayfair over the power that states should have to tax businesses that aren’t located within their borders yet sell goods to local residents.


Brookings Institution

  • Op-ed on President Trump’s effect on trade, immigration and worker education and training: Harry Holzer, a non-resident senior fellow for economic studies, outlined how various policy actions have impacted U.S. workers. For example, Holzer argued that the cancellation of the Deferred Action for Child Arrivals program will harm the U.S. economy by “discouraging the entry of international graduate students or highly-skilled immigrants.” (BROOKINGS OP-ED – One year in: Has Trump been good for US workers?, By Harry Holzer, January 17, 2018)

BSA | The Software Alliance

  • Press release supporting passage of FISA Amendments Reauthorization Act: The release argued that the “legislation that reauthorizes Section 702 of the Foreign Intelligence Surveillance Act” improves “both individual privacy protections and government oversight and accountability mechanisms associated with the authority.” (BSA PRESS RELEASE – BSA Welcomes Passage of FISA Amendments Reauthorization Act, January 18, 2018)


  • Op-ed on NAFTA negotiations: Stephen Moore, a senior economic contributor argued in The Hill that “abandonment of NAFTA would weaken the entire North American region and shift global economic power to Europe and Asia.” He noted that “NAFTA has more than tripled trade in the region to $1.2 trillion and the resumption of tariffs could put these exchanges in jeopardy.” Moore also wrote that “Intellectual property industries support 45 million jobs, or 30 percent of U.S. employment, producing more than $7 trillion of value added output,” and threats to these protections could harm American output. (THE HILL – NAFTA 2.0 needs to protect American business patents, By Stephen Moore, January 18, 2018)

New America Foundation

  • Statement opposing passage of FISA Amendments Reauthorization Act: In response to the Senate voting to pass the FISA Amendments Reauthorization Act of 2017, Robyn Green, OTI’s policy counsel and government affairs lead, stated, “It’s shocking that at a time when our government is singling out communities for increased scrutiny based on their country of origin, faith, or race, the Senate would vote to expand Section 702 surveillance, and to empower the government to warrantlessly search through 702 data for Americans’ communications.” (NEW AMERICA OPEN TECHNOLOGY INSTITUTE STATEMENT – Senate Voted to Grant Administration More Section 702 Surveillance Authority, By Robyn Green, January 18, 2018)
  • Article on the importance of prioritization of cybersecurity: Robert Morgus, senior policy analyst with New America’s Cybersecurity Initiative and International Security program, argued that “the need for more and better cybersecurity capacity building has only grown as nearly all pillars of society—from the economy, to governance, to social interaction.” He emphasized that a good template for cybersecurity impact assessments “could be an important tool to drive forward the conversation about the impact of cybersecurity on development outcomes.” (NEW AMERICA ARTICLE – Cybersecurity in Development: to mainstream or prioritize?, By Robert Morgus, January 16, 2018)
  • Press release announcing amicus brief in United States v. Microsoft privacy case in the U.S. Supreme Court:  OTI announced that it, with a coalition of rights organizations and trade associations, “filed an amicus or ‘friend of the court’ brief in the U.S. Supreme Court in the case of United States v. Microsoft.” Sharon Bradford Franklin, a senior fellow, stated, “OTI urges the Supreme Court to deny the U.S. government the broad authority it seeks to obtain private communications. U.S. law does not and should not permit the government to unilaterally reach across international boundaries and demand communications data.” (NEW AMERICA FOUNDATION PRESS RELEASE – OTI and Coalition Urge Supreme Court to Limit Government Access to Data Stored Outside U.S., Citing Privacy and Security Concerns, January 18, 2018)


  • “The U.S. is setting the stage for these types of conflicts to be played out again and again… What the U.S. proposes to do conflicts with Irish and EU data protection frameworks.”

Scarlet Kim, legal officer, Privacy International

  • “In this political environment, and against the background of this presidency, a vote by a Democrat in support of 702 reauthorization is especially brave and a testament to the powerful merits of Section 702.”

Jack Goldsmith, professor of law, Harvard University & Susan Hennessey, executive editor and general counsel, Lawfare Institute

  • “Nothing is really confidential… Our hypothesis is that everything can be read when we are in China.”

Anonymous Chinese diplomats

  • “To me, what happened tonight is the Senate voted to rubber-stamp a program over which most senators have not fulfilled their constitutional responsibilities… I think it’s just a surrender of our constitutional obligations… So when senators talk about oversight, I think people are going to say, ‘Where were you tonight?’”

Sen. Ron Wyden

  • “This bill is not perfect. Rarely have I worked on or voted on a bill anywhere that’s perfect. But I believe this measure represents a significant compromise and preserves the operational flexibility of Section 702 while instituting key reforms to further protect U.S. personal privacy.”

Sen. Mark Warner

  • “With Amazon Echo microphones sitting inside so many American homes, it’s essential that Amazon explain how often governments demand that data and how it fights back against overbroad request.”

Matt Cagle, technology and civil liberties attorney, the ACLU of Northern California