Microsoft sues US govt over warrant secrecy orders

Microsoft has filed a lawsuit against the US government challenging a law that allows judges to order technology companies not to notify customers when the government accesses their private data.

The company is asking the courts to explore the legitimacy of legislation that allows judges to issue gag orders preventing tech companies from revealing that they provided access to customers’ data under a legal warrant.

The company will argue that such secrecy orders violate the First Amendment of the US constitution — which guarantees the right to free speech, as well as the Fourth Amendment — which gives people and businesses the right to know if the government searches or seizes their property.

Microsoft President and Chief Legal Officer Brad Smith wrote in a blog post that the legal action is designed to protect the company’s customers’ rights to privacy and free expression. He said it is becoming routine for the US government to issue orders that require email providers to keep such legal demands secret.

He said there are times when secrecy around a government warrant is required, such as if it would create a risk of harm to another individual or allow suspects to destroy evidence in advance.

“But based on the many secrecy orders we have received, we question whether these orders are grounded in specific facts that truly demand secrecy,” he said.

“Over the past 18 months, the US government has required that we maintain secrecy regarding 2576 legal demands, effectively silencing Microsoft from speaking to customers about warrants or other legal processes seeking their data. Notably and even surprisingly, 1752 of these secrecy orders, or 68% 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,” he said.

Smith added that the issue has major ramifications given the rapid adoption of cloud services and the associated profound changes to the way private information is being stored.

If a business hosts an email server in its own building, the government must provide notice to enter the building or require the business to provide data stored on the server, he said. But the secrecy orders forbid cloud service providers from letting businesses know that the government has obtained their data.

Smith concluded that Microsoft is open to a reasonable compromise with the US Department of Justice that would balance the necessity of secrecy orders in some cases with principles of transparency and digital neutrality.

Image courtesy of Tori Rector under CC