Microsoft announced today that it is suing the U.S. government over secrecy orders that prevent the company from informing customers when federal agencies request data. The lawsuit, filed today in federal court in Seattle, argues that the gag order is unconstitutional. The statute in the Electronic Communications Privacy Act of 1986, according to the New York Times, “violates the Fourth Amendment right of its customers to know if the government searches or seizes their property, and it breaches the company’s First Amendment right to speak to its customers.”
The case is not over one specific warrant or investigation, but instead challenges the entire legal process concerning secrecy orders.
In a blog post announcing the legal move, Microsoft president Brad Smith wrote:
The urgency for action is clear and growing. 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. 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.
The rise of cloud computing — which stores data remotely on servers owned by Microsoft, not the customer — has muddied the waters of who owns what data, and who can access it. The government, Microsoft argues, has been using the statute in order to obtain and read customer’s emails without their knowledge. In the suit, Microsoft says that the Justice department has “exploited the transition to cloud computing as a means of expanding its power to conduct secret investigations.”
The Justice department told the Times that it was reviewing the filing.
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. Apple’s refusal to cooperate in the San Bernardino case made sense both as a stand for privacy rights and as a signal to its customers that it would protect their data. It might have argued that resisting government surveillance was a fiduciary duty to their investors. Similarly, Microsoft today claimed that the gag orders “undermine confidence in the privacy of the cloud and have impaired Microsoft’s right to be transparent with its customers.”