Executive Briefing January 5, 2018

TOP STORIES: Launch of Connect Americans Now Coalition/Microsoft Top 10 Tech Issues for 2018

Axios Exclusive: New Coalition to Bring More Internet to Rural America

Microsoft, along with a slew of rural broadband and technology groups, is launching a new issue advocacy coalition called Connect Americans Now that aims to eliminate the digital divide in rural America. It’s part of a greater push by the company and others to close the broadband gap by using TV “white spaces” spectrum — or vacant channels that use TV frequencies that are generally cheaper than fiber optic cable.

Microsoft’s Top 10 Tech Issues for 2018—Brad Smith and Carol Ann Browne

Over the past six months we’ve written in our Today in Technology series about historical tech developments and the insights they provide for our current day. As the calendar flips to 2018, we are looking back at the top tech issues of the last year, offering our perspectives for the coming 12 months, recapping what we’ve learned, and sharing how Microsoft is helping to address these issues. The following are our top 10.


  • “Yes, Microsoft has armies of lawyers to protect itself, but we should all be concerned. If the government can bully Microsoft, think of what they’ll be able to do to people without armies of lawyers. Given the technological changes of the last 30 years, the EPCA is not a law the judicial branch should be interpreting — it’s a law the Congress should just replace.”

Jared Whitley, former staffer of Sen. Orrin Hatch

  • “The fact that Microsoft is an American company changes nothing about the fact that the data is on a server in the EU and that here Microsoft must adhere to European law.”

Iris Plöger, executive board member, BDI


The Weekly Standard Congress Seeks Balance Between Privacy and Security in Surveillance Reauthorization

Back in December, lawmakers put off the long-term reauthorization of Title VII of the Foreign Intelligence Surveillance Act, a powerful surveillance authority, amid a pre-Christmas legislative whirlwind. Now the House and Senate have until January 19 to agree on a reauthorization bill that satisfies both privacy advocates and national security-focused lawmakers who want the legislation to maintain its muscle. The most controversial provision of FISA, Section 702, allows the government to collect communications to or from a foreign person located outside the United States for foreign intelligence purposes. But sometimes U.S. persons’ communications get incidentally swept up under the authority, despite its overseas mandate.

Reason No Foreign Spy Program Reauthorization Without Citizen Protections

Reason published a blog by Sen. Rand Paul explaining that he “will do whatever it takes, including filibuster” to prevent reauthorization of Section 702 without adequate reforms that protect Americans’ privacy.

Politico Morning Tech: With Hatch Departure, Tech Loses Key Advocate

Politico’s Morning Tech newsletters reported on the potential impacts for tech stemming from Sen. Orrin Hatch’s plan to retire at the end of this year. In particular, the newsletters highlighted Hatch’s stance on law enforcement access to encryption and his efforts to pass ICPA to clarify how law enforcement should handle requests for foreign-stored data.


Deseret News Jared Whitley: Hatch’s internet privacy bill would be a fitting legacy

The Deseret News published an opinion piece by Jared Whitley, former staffer under Sen. Orrin Hatch, urging Congress to pass ICPA before Hatch retires. Jared examines that ICPA would reform the MLAT process and argues that the legislation might improve the efficiency of law enforcement by forcing investigations to be more focused. Whitley also notes ICPA would modernize ECPA, quoting Brad Smith that “the current laws were written for the era of the floppy disk, not the world of the cloud.”

Ars Technica Microsoft, DOJ set to go head to head at Supreme Court in 2018

Ars Technica, published a piece on the warrant case in a roundup of important cases the outlet followed in the past year, noting that Government of Ireland filed a neutral brief affirming it would comply with an MLAT request for the emails in question in the case.

Lawfare Cybersecurity Predictions for 2018

Writing for Lawfare, Paul Rosenzweig, senior fellow at R Street Institute, briefly noted his prediction that the Supreme Court will rule in favor of the DOJ, forcing Microsoft to turn over data stored in its Irish datacenter.   He notes this as a “data trade war.”

New York Times Would Twitter Ever Suspend Trump’s Account?

Protestors in San Francisco organizing under the name Resistance SF responded with a message of their President Trump boasted Tuesday evening that he had a “nuclear button” that is “much bigger” and “more powerful” than North Korea’s, again prompting fears that an errant tweet could lead to a nuclear conflict. (It is worth noting that there is no nuclear button.) The remark led to an immediate debate over whether Mr. Trump had broken Twitter’s rules and whether the platform should bar him from posting. A company spokeswoman said in an interview on Wednesday that the tweet had not violated its terms of service.


American Enterprise Institute (AEI)

  • Blog post on cybersecurity and digital trade: Resident scholar Claude Barfield argued that “the Trump administration may be laying the groundwork for another run at forcing Silicon Valley companies (read Apple in particular) to provide some form of decryption solution for iPhones and other devices to aid the FBI and local law enforcement officials in heading off terrorist attacks and capturing domestic criminals.” (AEI BLOG – Cybersecurity and digital trade in 2018: Preliminary predictions, By Claude Barfield, January 3, 2018)

BSA | The Software Alliance

  • BSA in The Wall Street Journal on digital governance: “CIO Journal spoke to Victoria Espinel, CEO of the software industry trade group BSA, about the global data governance agenda, with a focus on Europe and the U.S.” Espinel stated that “the EU’s development of its recently proposed Cybersecurity Act will have broad ramifications for industry and will be important to watch.” (THE WALL STREET JOURNAL – Global Tech Governance Faces Dramatic Change in 2018, By Steve Rosenbush, December 28, 2017)


  • Op-ed on surveillance: Vice president of legislative affairs Jason Pye and the ACLU’s Neema Singh Guliani argued in The Hill, “We hope that House Republican leadership will use the additional time to allow a real debate on surveillance in the United States and consider other legislative proposals that protect Americans’ Fourth Amendment rights. They should abandon consideration of the FISA Amendments Reauthorization Act in the new year, which would simply continue the erosion of our liberties.” (THE HILL – Bulk surveillance is the wrong way to approach security, By Jason Pye and Neema Singh Guliani, January 3, 2018)

The Heritage Foundation

  • Blog post on DACA: Noting that the “Supreme Court struck down a lower court order that severely burdened efforts by the Trump administration to end the Obama administration’s Deferred Action for Childhood Arrivals program,” Deputy director Alden Abbott explained that “although the Supreme Court has removed (for now) one unnecessary burden to elimination of DACA, the final judicial word has not been said.” He added, “Let us hope that, in considering this case, the federal courts remember that it is their job to construe the law and say what it is—not to impose their subjective immigration policy preferences on the American people.” (THE DAILY SIGNAL – Supreme Court Tellingly Rejects Lower Court Roadblock to Elimination of DACA Program, By Alden Abbott, December 22, 2017)


  • Statement on retirement of Senator Orrin Hatch: Linda Moore, President and CEO, said, “Among his many achievements, he has helped reshape America’s judiciary, led the passage of major tax reform legislation, tackled immigration issues with both economic sense and a deep appreciation for how immigration benefits our country, and championed countless other policies to promote American innovation.  As Senator Hatch winds down his career, we look forward to working with him on finishing strong and adding to an already impressive legacy that was further burnished by his work on tax reform in 2017.” (TECHNET STATEMENT – TechNet Statement on Retirement of Senator Orrin Hatch, January 2, 2018)


  • “Our Founders gave us the Fourth Amendment to prevent a tyrannical government from invading our privacy, and we are fools to relinquish that hard-won right because of fear… While I believe that most people within the intelligence community are hard-working, patriotic Americans with whom we can have an honest discussion about the best way to protect America, it only takes a handful in the right positions to corrupt the system, and we should find out more about what has really been happening behind the scenes.”

Sen. Rand Paul

  • “Between attacks on our election system, data breaches at Equifax and elsewhere, and warrantless searches of Americans’ phones at the border, Congress is in desperate need of more expertise on tech and cybersecurity issues.”

Sen. Ron Wyden

  • “We hope that House Republican leadership will use the additional time to allow a real debate on surveillance in the United States and consider other legislative proposals that protect Americans’ Fourth Amendment rights. They should abandon consideration of the FISA Amendments Reauthorization Act in the new year, which would simply continue the erosion of our liberties.”

Neema Singh Guliani, legislative counsel, American Civil Liberties Union, and Jason Pye, vice president of legislative affairs at FreedomWorks

  • “The question would be objective: Is that category of record something that ordinarily is solely useful to the government to determine a person’s location?  If the nature of that kind of record means that it is of a type ordinarily only of government use to identify a person’s physical location, then it is protected by the Fourth Amendment unless there has been consent to the search.  On the other hand, if  government collection of that kind of record ordinarily has a non-location purpose, then this special rule would not apply and the third-party doctrine would continue to apply.”

Orin Kerr, professor of law, University of Southern California

  • “The data trade war will be exacerbated by the Supreme Court’s decision in the United States v. Microsoft overseas data storage case. The court will force Microsoft to repatriate data held in Ireland to America. In response, Europeans will adopt reciprocal restrictions.”

 Paul Rosenzweig, senior fellow, R Street Institute