Microsoft Sues US Government Over Data Request Gag Orders

Published: April 15, 2016 5:54 PM /


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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 Microsoft argues that the law is outdated, and was never meant to be applied to cloud storage.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.

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