Microsoft Corp (MSFT.O) has sued the U.S. government for the right to tell its customers when a
federal agency is looking at their emails, the latest in a series of clashes
over privacy between the technology industry and Washington.
The lawsuit, filed on Thursday in federal court in
Seattle, argues that the government is violating the U.S. Constitution by
preventing Microsoft from notifying thousands of customers about government
requests for their emails and other documents.
A U.S. Department of Justice spokesman declined to comment.
The government’s actions contravene the Fourth
Amendment, which establishes the right for people and businesses to know if the
government searches or seizes their property, the suit argues, and Microsoft's
First Amendment right to free speech.
Microsoft’s suit focuses on the storage of data on
remote servers, rather than locally on people's computers, which Microsoft says
has provided a new opening for the government to access electronic data.
Using the Electronic Communications Privacy Act
(ECPA), the government is increasingly directing investigations at the parties
that store data in the so-called cloud, Microsoft says in the lawsuit. The
30-year-old law has long drawn scrutiny from technology companies and privacy
advocates who say it was written before the rise of the commercial Internet and
is therefore outdated.
“People do not give up their rights when they move
their private information from physical storage to the cloud,” Microsoft says
in the lawsuit. It adds that the government “has exploited the transition to
cloud computing as a means of expanding its power to conduct secret
investigations.”
SURVEILLANCE BATTLE
The lawsuit represents the newest front in the battle
between technology companies and the U.S. government over how much private
businesses should assist government surveillance.
By filing the suit, Microsoft is taking a more
prominent role in that battle, dominated by Apple Inc (AAPL.O) in recent months due to the government’s efforts to get the company to
write software to unlock an iPhone used by one of the shooters in a December
massacre in San Bernardino, California.
Apple, backed by big technology companies including
Microsoft, had complained that cooperating would turn businesses into arms of
the state.
"Just as Apple was the company in the last case
and we stood with Apple, we expect other tech companies to stand with us,"
Microsoft's Chief Legal Officer Brad Smith said in a phone interview after the
suit was filed.
In its complaint, Microsoft says over the past 18
months it has received 5,624 legal orders under the ECPA, of which 2,576
prevented Microsoft from disclosing that the government is seeking customer
data through warrants, subpoenas and other requests. Most of the ECPA requests
apply to individuals, not companies, and provide no fixed end date to the
secrecy provision, Microsoft said.
Microsoft and other companies won the right two years
ago to disclose the number of government demands for data they receive. This
case goes farther, requesting that it be allowed to notify individual
businesses and people that the government is seeking information about them.
Increasingly, U.S. companies are under pressure to
prove they are helping protect consumer privacy. The campaign gained momentum
in the wake of revelations by former government contractor Edward Snowden in
2013 that the government routinely conducted extensive phone and Internet
surveillance to a much greater degree than believed.
Microsoft’s lawsuit comes a day after a U.S.
congressional panel voted unanimously to advance a package of reforms to the
ECPA.
Last-minute changes to the legislation removed an
obligation for the government to notify a targeted user whose communications
are being sought. Instead, the bill would require disclosure of a warrant only
to a service provider, which retains the right to voluntarily notify users,
unless a court grants a gag order.
It is unclear if the bill will advance through the
Senate and become law this year.
Separately, Microsoft is fighting a U.S. government
warrant to turn over data held in a server in Ireland, which the government
argues is lawful under another part of the ECPA. Microsoft argues the
government needs to go through a procedure outlined in a legal-assistance
treaty between the U.S. and Ireland.
Twitter Inc (TWTR.N) is fighting a separate battle in federal court in Northern California
over public disclosure of government requests for information on users.
The case is Microsoft Corp v United States Department
of Justice et al in the United States District Court, Western District of
Washington, No. 2:16-cv-00537.
(Reporting by Sarah McBride in San Francisco;
Additional reporting by Dustin Volz in Washington; Editing by Bill Rigby)
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