Microsoft is suing the US Department of Justice, claiming it is unconstitutional to use secrecy orders that prevent it from telling customers when the government accesses their data.
In the suit, filed on Thursday, Microsoft challenges a section under the US Electronic Communications Privacy Act (ECPA), which permits the government to request secrecy when searching and seizing property.
The act, introduced 30 years ago, is poorly suited to today's world where information is increasingly stored remotely from a person's premises, Microsoft contends.
Microsoft says that lengthy and permanent secrecy orders violate the Fourth Amendment right to know if the government is searching a person or business’ property. It also violates Microsoft’s First Amendment right to free speech.
The company has received 5,624 government requests for access to customer data in the past 18 months of which 2,576 came with a gag order. Nearly two thirds of the gag orders required Microsoft’s permanent silence.
Microsoft said the government routinely asks for secrecy orders rather than sparing them for when there is a real risk to an individual and that the government is exploiting the transition of private information from paper and home computers to the cloud.
“The government seeks and executes warrants for electronic communications far more frequently than it sought and executed warrants for physical documents and communications— apparently because it believes it can search and seize those documents and communications under a veil of secrecy,” Microsoft said in the filing.
“People do not give up their rights when they move their private information from physical storage to the cloud,” it added.
The suit is Microsoft’s latest challenge to the 30 year-old ECPA, which has been spearhead by its chief legal officer Brad Smith. As Smith pointed out at a recent hearing, when the act was introduced Facebook CEO Mark Zuckerberg was two years old and IBM still made the best PCs.
Microsoft has a lot riding on business and consumer trust in the cloud. The company has moved core products like Office to the cloud and is enticing enterprise customers to move their IT infrastructure to Azure, which could be threatened by the secrecy orders.
In a blog post today, Smith said businesses are concerned about the government secretly accessing data.
“Business customers regularly convey to us their strong desire to know when the government is obtaining their data,” said Smith. “And not surprisingly, they want the opportunity for their own lawyers to review the situation and help decide whether to turn over information or contest the issue in court.”
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