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Bully pulpit: The GC as public mover and shaker

Technology is as much about social policy as it is about engineering, and the prominence of lawyers like Smith affects the legal profession and society

From the perspective of The New York Times, Microsoft general counsel Brad Smith is important because he's taken a huge leadership role in ensuring that his company plays on the side of the angels to protect private data.

From our perspective, that leadership role is also important because a GC is playing it.

If nothing else, a July 20 Times feature on Smith reinforces a constant sub-theme of this column and the insistent message in-house counsel have been hearing for years about the need to expand their professional impact beyond the confines of strictly legal practice.

When was the last time we saw anyone with the title “general counsel” so lavishly treated in a major news outlet? The Times does emphasize that Smith's heightened impact is a direct result of his amazing longevity at Microsoft. Hired in 2002, he's the company's longest-serving senior executive and offers an abiding role model for how much more GCs can be in the future than they’ve been in the past.

First, Smith has expanded the public affairs role of the GC in ways that are very public. For example, he's led efforts to change how the government gathers data, a campaign that includes the Reform Government Surveillance coalition spearheaded by Smith and LinkedIn's GC Erika Rottenberg. Smith has publicly lobbied to redefine snooping in the same terms as cyberattacks and malware. That's a clear-cut division of the landscape between the good guys and the bad guys, with the implicit challenge: Which side are you on?

Second, by playing a conspicuous role in public affairs, GCs simultaneously enhance their contributions on the reputation management front. Public sector officials are unable or unwilling to take corrective steps they feel might compromise needed information access in the “War on Terror,” and that leaves a void for private sector spokespersons to fill. The “Microsofts” get to wear the white hats, cast as ever-constant guardians of private data.

Third, they can wear those white hats without necessarily playing an adversarial role vis-à-vis the government. As the Times observes, Smith is very different from some colleagues at other companies for the close relationships he's maintained with public sector counterparts. In the same way, the best regulatory counsel are those who have the best relationships with regulators.

Fourth, GCs can become industry representatives. That reinforces all the related benefits of policy leadership and corporate reputation management.

Finally, in-house lawyers have a leadership impact by practicing law. When German officials threatened to limit their business with U.S. companies that use cloud storage because of an objectionable warrant for a customer's email data, Smith took the unprecedented step of challenging the court ruling. As of this writing, the case is pending. but it's fair to say Microsoft sent the Germans the right message with its legal action.

Technology is as much about social policy as it is about engineering, and the prominence of lawyers like Smith affects the legal profession and society. In the past, powerful GCs might commandeer government operatives whose inevitable priority was to maximize the benefits and minimize the liabilities of, say, pending tax legislation or environmental regulation. There was no need to rationalize and communicate their activities to most public stakeholders other than shareholders.

The privacy threats posed by both public and private sector entities have changed all that. Where the public might have griped about taxes or pollution in the past, today NSA incursions or compromised credit card information hit people even closer to where they live. They want answers not just from the President of the United States but from corporations like Microsoft as well.

It's a cautionary lesson for tech sector GCs that, if they don't respond, they’re wasting the ripest imaginable opportunity to serve themselves and their companies, not to mention the general good.

Richard Levick

Richard Levick, Esq., is the chairman and CEO of Levick. Follow him on Twitter @RichardLevick.

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