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Microsoft announced yesterday that it had filed a lawsuit against the United States government in order to protect the constitutional rights of its costumers. The company takes issue with the numerous data requests being made by the government, often containing gag orders to prevent Microsoft from informing customers their data has been turned over to the government. The post details the scope of the issue:

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. Notably and even surprisingly, 1,752 of these secrecy orders, or 68 percent of the total, contained no fixed end date at all. This means that we effectively are prohibited forever from telling our customers that the government has obtained their data.

Microsoft argues that these government orders violate the fourth amendment rights of its customers, who have a right to know if the government searches their data. The company also states that its own first amendment rights are being violated by the gag orders which prevent it from communicating facts to its customers. The company argues that, “The constitutional right to free speech is subject only to restraints narrowly tailored to serve compelling governmental interests, a standard that is neither required by the statute being applied nor met by the government in practice here.”

Microsoft states that the government is taking advantage of the growing adoption of cloud storage in order to search the private data of citizens in secret. In making its secrecy demands, the government is relying on The Electronic Communications Privacy Act, a wiretapping statute from 1986. Microsoft argues that the law is outdated, and was never meant to be applied to cloud storage. Microsoft states that, if the government doesn’t back down in its unreasonable application of the law then it falls on Congress to amend the law with more acceptable privacy protections.

If Congress does decide to reform the law, Microsoft states three principles that should guide legislators on this matter:

  • The first is that people are entitled to know as soon as possible if service providers have turned over their data to the government.
  • The second principle is that people are not entitled to less notice of a government search just because they stored their data on the cloud.
  • The third principle articulated by Microsoft is that secrecy orders should only be used when absolutely necessary.

Microsoft acknowledges that in some cases it may be necessary to maintain secrecy for the sake of the investigation. However, due to the sheer volume of gag orders the company has received, Microsoft suspects that gag orders have simply become routine for the government, and are not being done out of necessity.

Is Microsoft right to sue the government over gag orders? Leave your comments below.

Max Michael

Senior Writer

I’m a technology reporter located near the Innovation District of Kitchener-Waterloo, Ontario.

  • Mitchell

    So Microsoft can collect all of our data and swim in it like Scrooge McDuck, but once they have to share with someone else, THAT’s where they draw the line and remember that we have privacy rights (even though they have no intention of stopping themselves). I wish I could read this story without seeing it as a hypocritical PR stunt.

  • webkilla

    well that’s not cool

  • You don’t have to share anything with Microsoft.

  • Mitchell

    There’s a lot of things in the world that we don’t HAVE to do. I’m not about to fall into a pretentious argument. If someone were to make an operating system as user/gamer friendly as Windows without the privacy abuses and turning the users into the product which is sold to advertisers and data-miners, NO ONE would dump Microsoft/Windows as fast as me.

    Frankly, if Microsoft wants to look at how I type, where I shop, what I buy, how much porn I view, when I read the news, how I pay my bills…. I don’t care. While advertising and “big data” are huge money-makers, I pity the people who define their lives by those things and invest their energy in what amounts to spying on my online habits. They can make all the money they want; meanwhile I do things that, in my opinion, are far more important and make real differences in the world with my time. I get paid a terrible wage to do it, but I enjoy it, truly believe it makes a difference, and get to feel pride.

    I’d prefer to have privacy and will seek out realistic increases in privacy wherever I can find them because I value the principle, but total privacy generally doesn’t exist anywhere anymore. My comment here was a remark on the hypocrisy of Microsoft’s claims which are only further highlighted by the timing of Apple having recently received a bunch of positive PR from their fight against the FBI. Classic Microsoft: always childishly copying what others had the creativity or the courage to do first.

  • One: All telemetry and spying can be disabled without override via group policy options. Infact, any registry setting can be configured in such a way that windows will not override it.
    Don’t have group policy? You can fix that.
    Think it’s hard to use? You’re wrong.

    Two: Linux is absolutely gamer friendly and user friendly.
    Game developers are not Linux friendly.

    It’s not an operating system’s responsibility to run software developed for another platform.