Over the past 18 months, the USA government has required that we maintain secrecy regarding 2,576 legal demands, effectively silencing Microsoft from speaking to customers about warrants or other legal process seeking their data.
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Microsoft’s lawsuit, somehow both defensive and offensive, is the latest in a growing trend of tech companies making privacy issues matters of public importance – both out of what they consider civic duty, and out of consumer demand. “Large providers like [Microsoft] have a view of the Internet, of the cloud, and of the USA government’s practices and tactics that most companies (or groups like EFF) don’t have”, he said.
“People do not give up their rights when they move their private information from physical storage to the cloud”, Microsoft said in the lawsuit.
Of those gag orders, 68% had no end date, Smith said, meaning Microsoft is permanently prohibited from notifying a customer that the government has its data.
The company said it is becoming routine for the government to issue orders requiring secrecy when it seeks information from email providers.
Referring to a pre-cloud era when individuals and businesses stored their data first in file cabinets and later in PCs and on-premises servers, Microsoft’s lawsuit contends that those individuals knew they were under investigation because they could watch authorities parading through their offices and leaving with their files or hardware. Microsoft’s stance is that a customer has the right to know when a government obtains a warrant to search their data but the government gets around this with secrecy orders.
Earlier this year, Apple launched a high-profile fight, backed by many companies and civil liberties groups, to prevent the Federal Bureau of Investigation from forcing the company to disable an encryption measure on an iPhone connected to a mass shooting. Perhaps the most troubling thing about that is that when the Department of Justice makes the request, they can force the company to not tell you about it. Microsoft wants to warn people when their cloud-hosted files and messages have been requested by law enforcement, but the biz is often hit by gag orders.
Jennifer Daskal, a law professor at American University, commented that Microsoft was right that an indefinite secrecy order violated the tech firm’s First Amendment.
Microsoft isn’t arguing that the government should be forbidden to access information in exceptional cases, but that Section 2705(b) gives too much power to the government. That third case involves Microsoft’s challenge of a US search warrant for a customer e-mail in Ireland belonging to a non-U.S. citizen, Smith said.
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Reuters reports that Microsoft has opened a suit against the policy of secret government data requests. With Microsoft’s contemporaries – Apple, Google, at al – all subject to the same restrictions, the outcome of this case could have far-reaching consequences.
