Microsoft to Drop Lawsuit After DOJ Gag Order Policy Change

The U.S. Department of Justice makes changes to its secrecy orders policy, prompting Microsoft to pull its high-profile lawsuit.


Microsoft is claiming victory in one of the most closely watched legal cases, even before the case finished making its way through the U.S. federal court system.

The Redmond, Wash., software maker is dismissing a lawsuit filed in April 2016 against the U.S. Department of Justice (DOJ) seeking to curb the U.S. government's practice of issuing so-called secrecy orders, or gag orders, that prohibit cloud and online services providers from telling customers when law enforcement agencies have sought and obtained their data using a statute in the Electronic Communications Privacy Act (ECPA).

The decision to drop the lawsuit comes after the Justice Department enacted a new binding policy that is expected to reduce the number of secrecy orders issued by the government and help ensure that such demands stringently fit the particulars of a given case.

The policy also ends the practice of issuing indefinite secrecy orders that lack an end date. Indefinite secrecy orders amounted to 68 percent, or 1,752, of the 2,576 gag orders Microsoft received from the U.S. government in the 18 months preceding last year's lawsuit.

Microsoft also argued that the ECPA statute, Section 2705(b), violates the company's First Amendment right to free speech and customers' rights to know if the government seizes or searches their property as set by the Fourth Amendment.

Microsoft's lawsuit gained the support of industry heavy-hitters.

Rivals Amazon, Apple and Alphabet subsidiary Google filed friend-of-the-court briefs, as did a who's who of trade groups and media companies, including the U.S. Chamber of Commerce, the National Association of Manufacturers, Fox News and The Washington Post. In total, nearly 90 technology firms, media organizations, academics and former law-enforcement officials filed amicus briefs supporting the company's stance.

A year and a half later, the Justice Department is radically altering its gag order policy.

"This new policy limits the overused practice of requiring providers to stay silent when the government accesses personal data stored in the cloud. It helps ensure that secrecy orders are used only when necessary and for defined periods of time," said Brad Smith, president and chief legal officer at Microsoft, in an Oct. 23 announcement.

"This is an important step for both privacy and free expression," continued Smith. "It is an unequivocal win for our customers, and we're pleased the DOJ has taken these steps to protect the constitutional rights of all Americans."

Although the DOJ gag order policy changes are welcome, Smith cautioned that the reversal doesn't address all the data privacy concerns surrounding the Electronic Communications Privacy Act. He called on Congress to work on amending the law, which dates to 1986, specifically by supporting the ECPA Modernization Act of 2017.

As for the Ireland email court case, Microsoft's other high-profile data privacy case, it is now pending in the U.S. Supreme Court, noted Smith. On Oct. 16, the Supreme Court granted a petition from the Justice Department to review Microsoft's July 2016 victory in a case involving a search warrant seeking access to emails that belong to a non-U.S. citizen and are stored in servers at an Irish data center.

Pedro Hernandez

Pedro Hernandez

Pedro Hernandez is a contributor to eWEEK and the IT Business Edge Network, the network for technology professionals. Previously, he served as a managing editor for the network of...