Microsoft sues U.S. over data requests it’s forced to keep secret

In the latest skirmish between tech and the government over privacy, Microsoft has sued the U.S. Justice Department, saying it wants to be able to tell its customers when authorities are looking at their emails and other digital information.

“It’s becoming routine for the U.S. government to issue orders that require email providers to keep these types of legal demands secret,” Brad Smith, Microsoft president and chief legal officer, said in a Thursday blog post explaining the lawsuit. “We believe that this goes too far and we are asking the courts to address the situation.”

The lawsuit, filed in federal court in the Western District of Washington, says the gag order statute in the 1980s-era Electronic Communications Privacy Act (ECPA) violates its customers’ Fourth Amendment search-and-seizure rights, and the company’s First Amendment right to speak to its customers, according to the New York Times.

Smith said Microsoft has been prevented from informing its customers about more than 2,500 legal demands over the past 18 months, and that in 68 percent of those cases, the secrecy orders had no fixed end dates.

“This means that we effectively are prohibited forever from telling our customers that the government has obtained their data,” Smith wrote.

“We are reviewing the filing,” Justice Department spokeswoman Emily Pierce told SiliconBeat in an email.

The ECPA is subject to a proposed update, the Email Privacy Act, which the House Judiciary Committee approved Wednesday. The full House will reportedly take it up at the end of the month. The key change is that the federal government would be required to obtain a warrant for information that’s older than 180 days. But it wouldn’t change the gag orders Microsoft complains about in its lawsuit.

In fact, an amendment to the Email Privacy Act would remove the requirement for government to inform people that it’s seeking access to their information, shifting the burden solely to companies.

The companies have been the ones that have mostly been providing that notice anyway, Mark Jaycox, Civil Liberties Legislative Lead for the San Francisco-based Electronic Frontier Foundation, told SiliconBeat in a phone interview today.

However, as Microsoft shows in its lawsuit, gag orders can prevent companies from serving notice to their customers.

This new battle comes on the heels of the high-profile fight between Apple and the U.S. over unlocking the iPhone of one of the shooters in the San Bernardino terrorism case. Microsoft seems to be striking while the debate is still fresh in the public’s minds — how far can the government go in its use of technology, and what are Americans’ rights in this day and age of digital communications?

In its suit, Microsoft says the government has “exploited the transition to cloud computing as a means of expanding its power to conduct secret investigations.”

This sentiment is similar to one Uber expressed this week, when the ride-booking company released its first transparency report — and made sure to note that it didn’t like having to share a bunch of information with the government.

“Today requests to digital companies often exceed those for offline companies,” Uber said in a post on Medium. “We hope our Transparency Report will lead to a public debate about the types and amounts of information regulated services should be required to provide to their regulators, and under what circumstances.”



Photo: People walk past a Microsoft office in New York on October 6, 2015. (JEWEL SAMAD/AFP/Getty Images)


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