“We appreciate that there are times when secrecy around a government warrant is needed,” Microsoft President Brad Smith wrote in a blog post Thursday. “But based on the many secrecy orders we have received, we question whether these orders are grounded in specific facts that truly demand secrecy. To the contrary, it appears that the issuance of secrecy orders has become too routine.”
With those words, he announced that Microsoft had filed a lawsuit against the Justice Department. The complaint says it’s “unconstitutional” for the government to force Microsoft not to tell you when federal agents access or view your information–for instance, reading your emails. The landmark case filed today in federal court in Seattle is the latest in a strong of legal battles over security and privacy, pitting the giants of America’s tech industry against Washington.
Microsoft’s Smith wrote in today’s blog post that the lawsuit was about “stand[ing] up for what we believe are our customers’ constitutional and fundamental rights – rights that help protect privacy and promote free expression. This is not a decision we made lightly.”
The complaint [PDF Link] says that over the past 18 months, Microsoft received 5,624 demands from the federal government for information or data belonging to its users. About half of those requests, 2,576 of them, were attached to gag orders. Of those, nearly half – 1,752 — had “no fixed end date” on which Microsoft would finally be allowed to talk about any of this to anyone. From the Wall Street Journal:
Lee Tien, a senior staff attorney at the Electronic Frontier Foundation, expressed surprise at the open-ended nature of the gag orders cited by Microsoft. “I had no idea that so many judges would issue these things with no deadline. That’s mind boggling,” Mr. Tien said.
How many Americans use Microsoft’s many cloud-based services, from the Hotmail account your mom and dad use to the Microsoft Exchange mail systems your employer might use? Microsoft is legally prohibited from telling any of those people, including you, if someone at the FBI or any other federal agency is snooping on your location data, emails, selfies, or any other data associated with your account — from sexts to electronic payment histories.
Microsoft claims the government’s actions violate the Constitution’s Fourth Amendment, which establishes the right for individuals and businesses to know when the government searches or seizes their property. Microsoft is also claiming that the now common secret warrants violate its First Amendment right to free speech.
The Department of Justice is reviewing the filing, spokeswoman Emily Pierce told Reuters.
Jenna McLaughlin at The Intercept:
The last big fight between the Justice Department and Silicon Valley was started by law enforcement, when the FBI demanded that Apple unlock a phone used by San Bernardino killer Syed Rizwan Farook. This time, Microsoft is going on the offensive. The move is welcomed by privacy activists as a step forward for transparency — though it’s also for business reasons.
Secret government searches are eroding people’s trust in the cloud, Smith wrote — including large and small businesses now keeping massive amounts of records online. “The transition to the cloud does not alter people’s expectations of privacy and should not alter the fundamental constitutional requirement that the government must — with few exceptions — give notice when it searches and seizes private information or communications,” he wrote.