Tools and Weapons: The Promise and The Peril of the Digital Age

by Brad Smith

The Washington Post story indicated that the NSA, in collaboration with its British counterpart, was pulling data from the cables used by American technology companies, potentially without judicial review or oversight. We worried that this was happening where cables intersected in the United Kingdom. As lawyers across the industry compared notes, we theorized that the NSA persuaded itself that by working with or relying upon the British government and acting outside US borders, it was not subject to the Fourth Amendment to the US Constitution and its requirement that the NSA search and seize information only pursuant to due process and court orders. The reaction at Microsoft and across the industry was swift. In the weeks that followed, we and other companies announced that we would implement strong encryption for all the data we moved between our data centers on fiber-optic cables, as well as for data stored on servers in our data centers themselves.28 It was a fundamental step in protecting customers, because it meant that even if a government siphoned up customer data by tapping into a cable, it would almost certainly be unable to unlock and read what it had obtained.