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Microsoft Sues Justice Department to Protest Electronic Gag Order Statute

Big technology companies have usually played a defensive game with government prosecutors in their legal fight over customer information, fighting or bowing to requests for information one case at a time.

But now, in a move that could broaden the debate over the balance between customer privacy and law enforcement needs, Microsoft is going on the offense.

The software giant is suing the Justice Department, challenging its frequent use of secrecy orders that prevent Microsoft from telling people when the government obtains a warrant to read their emails.

In its suit, filed Thursday morning in Federal District Court in Seattle, Microsoft's home turf, the company asserts that the gag order statute in the Electronic Communications Privacy Act of 1986 — as employed today by federal prosecutors and the courts — is unconstitutional.

The statute, according to Microsoft, 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.

Microsoft's suit, unlike Apple's fight with the Federal Bureau of Investigation over access to a locked iPhone, is not attached to a single case. Instead, it is intended to challenge the legal process regarding secrecy orders.

The company is also trying to fuel a public debate about the frequent use of secrecy orders in government investigations and, in the process, portray itself as an advocate of its customers' privacy. The suit itself could plod through the courts, with appeals going on for months or even years.

Emily Pierce, a spokeswoman for the Justice Department, said officials were "reviewing the filing."

Microsoft is drawing attention to legal issues that have become more acute as tech companies move their customers' personal and business information into so-called cloud computing systems. The largest such digital storehouses of personal email and documents are operated by big tech companies like Microsoft, Google and Apple.

Seizing information from file drawers or personal computers used to require entering a building to examine paper or a hard drive. Typically, the target of an investigation knew about it.

Not so in the cloud computing era, when investigators can bypass an individual and go straight to the company that hosts that information. And when courts issue secrecy orders, often with no time limit, a target may never know that information was taken.

Microsoft, in its suit, contends that the government has "exploited the transition to cloud computing as a means of expanding its power to conduct secret investigations."

In an interview, Bradford L. Smith, Microsoft's president and chief legal officer, said, "People should not lose their rights just because they are storing their information in the cloud."

Microsoft, like Google and Apple, fields thousands of requests a year from federal and state prosecutors for customer information. The companies issue periodic reports with the totals.

But, Mr. Smith said, it was the rising portion of gag orders attached to the information warrants that led to the suit. From September 2014 to March 2016, Microsoft received 5,624 federal demands in the United States for customer information or data. Nearly half — 2,576 — were accompanied by secrecy orders.

Mr. Smith called the growing share of secrecy orders "fairly shocking," suggesting they had become a routine process rather than an exception.

The suit positions Microsoft as a champion of its customers' privacy and draws attention to a legal process many may not be aware of.

"Most people do think of their email as their personal property, wherever it happens to reside," said A. Michael Froomkin, a law professor at the University of Miami. "But there is a disconnect between behavior and expectations and the statute. And Microsoft is inviting a court to bring the law in line with people's expectations."

Beyond image-burnishing, the suit is a pragmatic attempt to move away from litigating cases one by one, which is costly and time-consuming.

"Microsoft is going on offense, but they're kind of forced into it," Mr. Froomkin said.

Judges grant the secrecy orders. Microsoft sees only the warrant for the information demanded and not the argument made by the prosecutors to justify a gag order. But the Microsoft legal team looked at the high percentage of secrecy orders granted in the year and a half through March of this year, and concluded that prosecutors often relied on a vague standard that there was a "reason to believe" that disclosure might hinder an investigation.

Microsoft, Mr. Smith said, "readily recognizes that nondisclosure orders are appropriate and necessary" when there is a risk of endangering a person's life or that crucial evidence may be destroyed, for example. "What concerns us is the low standard the government has to bear and the absence of a time limit," Mr. Smith added.

About two-thirds of the secrecy orders Microsoft received in the span it audited had no time limits. In the physical world, so-called sneak-and-peek warrants for secret searches are granted to look at documents without notifying a target. But most secrecy orders delay notification for a fixed period of time, typically 30 to 90 days, and detailed evidence is required for any extensions.

Microsoft, Mr. Smith said, has talked to other major tech companies, and others may join with briefs in support of Microsoft.

In addition to challenging the Justice Department and the courts, Microsoft is trying to prod Congress into looking at the issue. In both the House of Representatives and the Senate, legislation has been proposed to reform the Electronic Communications Privacy Act. But Mr. Smith said he saw little prospect of any substantive action in Congress anytime soon.

"We'll keep taking these ideas to the Justice Department, Congress and the courts," Mr. Smith said.

[Source: By Steve Lohr, The New York Times, 14Apr16]

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Privacy and counterintelligence
small logoThis document has been published on 18Apr16 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.