Microsoft Sues Government Over Demands for Consumer Data Under Order of Secrecy

Microsoft's case, filed in U.S. District Court in Seattle, challenges a law enforcement tool the company argues is being used in a way that violates its rights and those of its customers.

by Matt Day, The Seattle Times / April 15, 2016

(TNS) --  Microsoft sued the U.S. government on Thursday, arguing that a law that can be used to prohibit technology companies from telling customers when law enforcement comes looking for their data is unconstitutional.

Microsoft’s lawsuit is the U.S. technology industry’s latest high-profile challenge to the reach of law enforcement into cyberspace, coming a couple months after Apple fought an FBI order to disable an encryption measure on an iPhone connected to a mass shooting.

The Seattle-area company’s case, filed in U.S. District Court in Seattle, challenges a law enforcement tool Microsoft argues is being used in a way that violates its rights and those of its customers.

When law enforcement agencies get a warrant to grab emails or other data stored online, they can request a court order that bars Internet service providers from informing the user that their documents were seized. Microsoft has received about 5,600 federal demands for consumer data in the last 18 months. Almost half were accompanied by such secrecy orders.

In the physical world, Microsoft says, government agencies are typically required to give notice when seeking personal papers or letters.

People and businesses store an increasing amount of data in the cloud, or Internet services that tap into networks of data centers owned by Microsoft, Google, and other companies. Technology companies say that shift has outpaced the laws, many of which are decades old, that govern electronic communications.

The government “has exploited the transition to cloud computing as a means of expanding its power to conduct secret investigations,” Microsoft said in its lawsuit, which names the Justice Department and Attorney General Loretta Lynch.

A Justice Department spokeswoman said the government was reviewing the filing. The government has said such secrecy orders can be necessary because subjects could change their behavior if made aware of investigations.

The lawsuit is the fourth time Microsoft has taken the federal government to court on privacy or transparency issues since Edward Snowden’s disclosures about data collection by U.S. intelligence agencies. The company is eager to reassure customers, and particularly the businesses that Microsoft relies on for most of its sales, who are worried about unwarranted intrusion into their data.

“We hear frequently from our business customers that this is an issue of real importance to them,” Brad Smith, Microsoft’s president and chief legal officer, said of the government secrecy orders.

Microsoft and Smith have pushed for better-defined boundaries for the government’s reach, staking out a high-profile stance in favor of protections for data that reflect the principles that applied in the era when most documents were stored in desk drawers and safes.

Microsoft is in a yearslong fight with the U.S. Justice Department over the terms of law enforcement’s reach across borders. That case, which has also drawn broad support from business and civil liberties groups, challenges a prosecutor’s request for Microsoft customer data stored abroad. The company’s appeal is awaiting a ruling from the 2nd U.S. Circuit Court of Appeals.

The lawsuit filed Thursday says the portion of the Electronic Communications Privacy Act that authorizes such gag orders violates Microsoft customers’ Fourth Amendment right to protection from unreasonable searches and seizures. The company also says the orders are a violation of the company’s First Amendment rights to communicate with its customers and discuss government behavior.

For Smith, a tipping point in the decision to bring the lawsuit came a few months ago when Microsoft sought to challenge in court a single secrecy order, related to a customer’s email. The government responded by arguing that Microsoft should be held in contempt and fined for resisting the order.

Microsoft ultimately prevailed in that specific argument, Smith said, but it caused the company to take a deeper look at the government’s use of such orders.

“What we noted when we saw this was just how broad these secrecy orders have spread,” Smith said. “We realized that this is a recurring issue that is raising fundamental and even constitutional questions.”

©2016 The Seattle Times Distributed by Tribune Content Agency, LLC.