Microsoft sues U.S. government over data requests

Microsoft Corp (MSFT.O) has sued the U.S. government for the right to tell its customers when a federal agency is looking at their emails, the latest in a series of clashes over privacy between the technology industry and Washington. Back in 2014 when the U.S. Department of Justice sought permission to search a Microsoft Hotmail account, a judge rejected one condition the agency asked for - an order preventing Microsoft from ever telling its customer about the search.


Microsoft was not asked to submit its views in the case, nor did it attempt to do so. On Thursday, however, Microsoft cited the Hotmail ruling as a key precedent in a lawsuit the company filed against the government challenging indefinite gag orders when the government subpoenas information from a customer account. The company sees such orders as a possible barrier to potential clients considering the purchase of cloud storage services, an increasingly important part of Microsoft’s business.


The lawsuit, filed on Thursday in federal court in Seattle, argues that the government is violating the U.S. Constitution by preventing Microsoft from notifying thousands of customers about government requests for their emails and other documents. Over the past 18 months, federal courts have issued nearly 2,600 secrecy orders "silencing Microsoft from speaking about warrants," the company said in its lawsuit. Two-thirds of those were indefinite, meaning there was no end date for how long they remained in effect.

Microsoft’s lawsuit challenges indefinite government secrecy orders as a violation of the company's First Amendment free speech rights, as well as a violation of Fourth Amendment privacy rights which establishes the right for people and businesses to know if the government searches or seizes their property, the suit argues, and Microsoft's First Amendment right to free speech.

The Department of Justice is reviewing the filing, spokeswoman Emily Pierce said.
Microsoft’s suit focuses on the storage of data on remote servers, rather than locally on people's computers, which Microsoft says has provided a new opening for the government to access electronic data.


In the Hotmail case, U.S. Magistrate Judge Paul Grewal ruled a limited gag order could be appropriate.

"The problem is that the government does not seek to gag Microsoft for a day, a month, a year, or some other fixed period,"

Grewal wrote.

"Having persuaded the court that a gag order is warranted, it wants Microsoft gagged for ... well, forever."

Another magistrate judge in Texas came to a similar conclusion on First Amendment grounds in 2008, and Grewal followed up the Hotmail ruling with a similar one involving a Yahoo email user.
For its privacy argument, Microsoft relies partly on a Supreme Court ruling that police must announce themselves while serving a warrant.

Using the Electronic Communications Privacy Act (ECPA), the government is increasingly directing investigations at the parties that store data in the so-called cloud, Microsoft says in the lawsuit. The 30-year-old law has long drawn scrutiny from technology companies and privacy advocates who say it was written before the rise of the commercial Internet and is therefore outdated.

“People do not give up their rights when they move their private information from physical storage to the cloud,” 

Microsoft says in the lawsuit. It adds that the government 

“has exploited the transition to cloud computing as a means of expanding its power to conduct secret investigations.”

(Reported by Reuters)