Microsoft believes its Constitutional rights, and the Constitutional rights of its customers and business partners are being violated by the U.S government's efforts to keep secret its searches into people's email.
The tech giant is suing the Department of Justice over the government’s increasing reliance on secrecy orders that block Microsoft from notifying its customers when their data is being examined by the government.
“Microsoft brings this case because its customers have a right to know when the government obtains a warrant to read their emails, and because Microsoft has a right to tell them,” states the the complaint, filed in federal court in Seattle Thursday.
“Yet the Electronic Communications Privacy Act (“ECPA”) allows courts to order Microsoft to keep its customers in the dark when the government seeks their email content or other private information,” according to the complaint.
By forcing Microsoft to stay quiet, the company argues the Fourth Amendment rights of its customers are being violated; The Fourth Amendment protects U.S. citizens from unreasonable searches. “People need to know if their email is being accessed in order to stand up and defend themselves,” Brad Smith, Microsoft’s president and chief legal officer, told BuzzFeed News. The company also believes its free speech rights are being curtailed, as the secrecy orders ban the company from freely communicating with its customers.
Microsoft alleges that over the last 18 months, federal courts have issued almost 2,600 gag orders, barring the company from telling its customers that their data is being searched by the government. That’s about 5 such orders per day. Microsoft also alleges that most of these orders, about sixty eight percent, or over 1750, contain no end date, committing the company to an indefinite silence.
While the rationale behind non-disclosure is to prevent suspects from being tipped off about active investigations, Microsoft argues that the law currently allows secrecy orders to stay in effect even after an investigation ends — or when a customer finds out about the search from another source.
Smith said that time limits on secrecy orders in other areas of the law provide an important check to the government — one that’s currently missing here.
As massive quantities of sensitive information shift from the insides of filing cabinets and hard drives into remote servers in the U.S. and abroad, Microsoft's case against the government represents another novel law enforcement dilemma.
“Our point of view is clear, we believe people deserve the same level of privacy protection for information they store in the cloud as for information they store on paper,” Smith said. As personal information is stored not only at home, but in far-flung data centers, the limits and requirements of a government search remain less clear.
“When people kept their documents at their house, the government couldn't access them without entering through the door,” Smith said, adding, “you knew about it.” “Now, we need the law to provide the protection that physical reality to some degree provided in the past.”
A spokesperson for the Justice Department said, "We are reviewing the filing.”