Microsoft Sues DOJ Over Secret Searches of Users' Cloud Data

By Pedro Hernandez  |  Posted 2016-04-14 Print this article Print
cloud privacy

The tech giant is seeking an end to the U.S. government's practice of prohibiting companies from disclosing when they receive court orders for customers' cloud data.

Advocating cloud privacy, Microsoft is heading back to court.

The Redmond, Wash., software maker and cloud services provider filed a lawsuit against the U.S. Department of Justice with the U.S. Western District Court of Seattle today, announced Microsoft President and Chief Legal Officer Brad Smith. The company is arguing that Section 2705(b), an Electronic Communications Privacy Act statute, violates both the First and Fourth Amendments and is thereby unconstitutional.

Courts are relying on the statute to obtain so-called secrecy orders when the government seeks customer data, according to Smith. "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," wrote Smith in an April 14 blog post. "Notably and even surprisingly, 1,752 of these secrecy orders, or 68 percent of the total, contained no fixed end date at all."

Chris Calabrese, vice president of policy at the Center for Democracy & Technology, a civil liberties and human rights advocacy group, told eWEEK the case is "just the tip of the iceberg." Judges sign off on many more secrecy orders than Microsoft has had to deal with.

"One federal magistrate judge estimated that there are 30,000 sealed orders issued annually—not just for the content of communication but also things like the location information from cell phones. When the government violates an individual's privacy like this, they should have a good reason if they are not going to tell them about it," Calabrese said.

"Microsoft is right to bring this case and bring attention to this important issue," he added.

Microsoft believes these actions violate the Fourth Amendment right to know if the government searches or seizes an individual's or business's property, Smith asserted. Further, they violate the company's First Amendment right to free speech by prohibiting the company from discussing these types of searches with customers, he added.

What's more, people are keeping more private information on the cloud in the form of emails and documents. Businesses, too, are shifting more workloads to the cloud, noted Smith, adding that they want their own lawyers to have the opportunity to review court orders for their data.

"The U.S. government is unlawfully and unconstitutionally preventing Microsoft from telling its users about surveillance activity," said Lee Tien, senior staff attorney for Internet Rights at the Electronic Frontier Foundation (EFF). "We deserve to know when the government is collecting data about our digital lives."

Coming from Microsoft, the lawsuit helps educate the court on the severity of the issue and shed some light on how secret orders are affecting users, according to Tien.

"Large providers like [Microsoft] have a view of the Internet, of the cloud, and of the U.S. government's practices and tactics that most companies (or groups like EFF) don't have," he said. "[Microsoft] can clearly and authoritatively tell the court, as it has, about how often it is gagged, and for how long."


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