By Lena Williams, Guild-CWA :: Over the past two years, the U.S. government has demanded Microsoft turn over thousands of bits and pieces of its customers’ personal information and ordered the company to keep quiet about it.
Between September 2014 and March 2016, the computer software giant received 5,624 orders from federal officials for customer information, including private emails. In nearly half the cases, the government imposed gag orders barring Microsoft from telling clients about the requests.
But now Microsoft appears to have had enough.
Last week, Microsoft sued the Justice Department, arguing that its frequent use of secrecy orders violates the Fourth Amendment search and seizure rights of its customers and the company’s First Amendment rights to speak freely about what the government is doing.
The suit was filed April 14 in federal court in Seattle, Microsoft’s home base. Microsoft alleges that the manner and frequency of government and court gag orders is unconstitutional and violates the gag order statute of the Electronic Communications Privacy Act of 1986.
Brad Smith, president and chief legal officer for Microsoft, said the company was acting in the interest of its customers’ constitutional and fundamental rights and “to help protect privacy and promote free expression.”
“We believe that with rare exceptions consumers and businesses have a right to know when the government accesses their emails or records,” Smith said in a post on Microsoft’s website. “Yet it’s becoming routine for the U.S. government to issue orders that require email providers to keep these types of legal demands secret. We believe that this goes too far and we are asking the courts to address the situation.”
The government has routinely sought private data and information from tech companies like Microsoft, Google and Apple. In the past when consumers stored materials on their own personal computers or on-premises servers, the government had to give notice when it sought a warrant to seize private information and communications.
But when tech companies began switching to cloud computing in the mid-2000s, information became available virtually on-demand.
And the U.S. government began to exploit it.
With the cloud, investigators could access personal data and information by going directly to the tech companies that stored the data. To prevent leaks, officials pushed the courts to issue secrecy orders.
“Over the past 18 months, the U.S. 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,” Smith said. “Notably and even surprisingly, 1,752 of these secrecy orders, or 68 percent of the total, contained no fixed end date at all. This means that we effectively are prohibited forever from telling our customers that the government has obtained their data.”
Microsoft is urging the government to adopt a new policy that “sets reasonable limitations on the use of these types of secrecy orders” and has asked Congress to play a role in finding and passing solutions to protect privacy rights while still meeting the needs of law enforcement.
“People have a right to know as soon as reasonably possible when the government serves a provider with a legal demand to access their records or emails,” Smith said. “Providers like Microsoft have a right to inform customers and be transparent with the public.”
This is the fourth time Microsoft has sued the government over privacy issues, according to Smith.
The first lawsuit led to a settlement that allowed the company to disclose the number of legal requests it receives. The second resulted in the government withdrawing a National Security Letter after the company challenged a non-disclosure order. The third challenged a government search warrant for the emails of a non-U.S. citizen living in Ireland. That case is pending in the U.S. Court of Appeals for the Second Circuit.
I say bravo, Microsoft – even if it is reasonable to question whether the company is acting in the best interests of its customers or in its own economic self interests.
After all, Microsoft reportedly lost billions in business after revelations by Edward Snowden that the National Security Agency was using the cloud computing of some of America’s largest tech companies to spy on American and non-U.S. citizens.
Despite the tech companies’ assertions that they provide information on customers only when required by law, millions felt they could no longer trust their service providers to keep their secrets.
Whatever Microsoft’s motivations, people have a right to know when the government gains access to personal information they thought was secure.
Thanks to the lawsuit, it is government secrets about threats to our constitutional rights that are being exposed.