In perhaps the most famous law review article ever written on the topic of privacy, Louis Brandeis wrote that privacy was “the right to be let alone.” This line comes from his piece in the Harvard Law Review, where he was considering the role that new technology would play in the life of the average American and his or her expectations of privacy. Of course, he wrote this in 1890, and the radical new technology that concerned him was the camera. 

Today, the topic of privacy is hotter than ever, and much of the discussion is still spurred by technology. These days it’s cloud computing, mobile devices and the Internet that are driving the conversation, a conversation that was jumpstarted by the actions of one Edward Snowden.

These topics and more were the subject of a recent panel at New York University (NYU). The April 23 installment of the Millbank Tweed Forum at NYU was entitled “The Future of Privacy,” and featured a presentation by Brad Smith, general counsel and executive vice president, legal and corporate affairs, at Microsoft.

Smith began the session by giving context, explaining how the Snowden story evolved and the role that Microsoft played at various stages of its development. Smith discussed how the NSA documents referred to a “Company F,” an Internet provider that had a Department of Legal & Corporate Affairs. This, Smith says, was Microsoft which, when approached by the NSA in 2002, opted not to give the NSA support in gathering email content because of liability concerns.

With that immediate background in place, Smith pulled the camera back in order to give broader historical context. He spoke about times in history when civil liberties shifted in light of a national crisis, such as when Abraham Lincoln suspended writs of habeas corpus. He used this context to frame a discussion about how the discussion about privacy has shifted after the terrorist attacks of 2001. At that time Americans were scared and more willing to sacrifice personal liberty for a greater sense of security, but as Smith describes it, the pendulum has swung back. 

In the next part of this series, we’ll explore Microsoft’s lawsuit over the NSA program, Smith’s thoughts on the Fourth Amendment, FISA courts, and how technology has changed the very definition of privacy.


In the meantime, check out these stories about privacy:

International privacy laws still pose challenges for the discovery process

Privacy is important to family law, employment law practice in California

Microsoft shareholder sues company over EU regulatory failings

Searching for standards in privacy and cybersecurity litigation