You might never know if police or FBI agents are reading your emails or files stored in the cloud, because the DOJ frequently issues indefinite gag orders that block companies from telling you. Microsoft argues that this secrecy is unconstitutional—and now it’s suing the government to stop it.
If Microsoft receives a request for information with a valid warrant, it complies, as do most technology companies. The problem isn’t the concept of government searches. It’s the way these searches are being conducted, with unnecessary secrecy, and in excess. From the federal suit:
Over the past 18 months, federal courts have issued nearly 2,600 secrecy orders silencing Microsoft from speaking about warrants and other legal process seeking Microsoft customers’ data; of those, more than two-thirds contained no fixed end date. (In fact, of the twenty-five secrecy orders issued to Microsoft by judges in this District, none contained a time limit.) These twin developments—the increase in government demands for online data and the simultaneous increase in secrecy—have combined to undermine confidence in the privacy of the cloud and have impaired Microsoft’s right to be transparent with its customers, a right guaranteed by the First Amendment.
Microsoft is asking a judge to rule that a Electronic Communications Privacy Act statute allowing secret searches is unconstitutional, arguing that it violates both the Fourth and First Amendment.
“Microsoft brings this case because its customers have a right to know when the government obtains a warrant to read their emails, and because Microsoft has a right to tell them,” the suit continues. “Yet the Electronic Communications Privacy Act (“ECPA”) allows courts to order Microsoft to keep its customers in the dark when the government seeks their email content or other private information, based solely on a “reason to believe” that disclosure might hinder an investigation.”
The suit compares storing data in Microsoft’s cloud to keeping documents in a filing cabinet, and argues that the government is unfairly interpreting the law to gain access to customers’ personal information without bothering to tell them that it is looking.
“The government, however, has exploited the transition to cloud computing as a means of expanding its power to conduct secret investigations,” the suit continues.
Apple fought the FBI earlier this year, after the government tried to force Apple to help unlock a suspect’s iPhone by writing software that weakened iPhone security. That fight exposed the tension between tech companies and the government over security and privacy. Microsoft’s suit shows that tech companies are well aware that their business models depend on people believing that they’re not going to sell them out to the government.
It’s important to recognize that these tech companies are, essentially, covering their butts. But while the suit is in Microsoft’s interest as a business, the DOJ does deserve to get sued over this shit. Gag orders are supposed to protect sensitive investigations. They are not supposed to be a tool to conduct thousands of searches without ever telling people. Microsoft is correct to call this behavior unconstitutional.