Coverage: Microsoft sues Justice Department over transparency issue

Microsoft sued the Justice Department in the hopes of preventing the government from accessing users’ data without its knowledge.

The battle to maintain user privacy has been a hot topic lately with Apple very publicly fighting the Federal Bureau of Investigation over the creation of software that would unlock an iPhone without its pass code.

Jessica Guynn of USA Today had the day’s news:

Microsoft has sued the Justice Department in a fresh effort to prevent the government from rifling through users’ personal emails or documents without their knowledge.

“We believe that with rare exceptions, consumers and businesses have a right to know when the government accesses their emails or records,” Microsoft president and chief legal officer Brad Smith wrote in a blog post. “Yet it’s becoming routine for the U.S. government to issue orders that require email providers to keep these types of legal demands secret. We believe that this goes too far and we are asking the courts to address the situation.”

The filing marks yet another high-profile skirmish between the government and a major technology company. Apple has pushed back against government demands that it help the FBI undermine its encryption and break into iPhones. Smith last month publicly supported Apple’s refusal to assist the government.

Microsoft has mounted a vigorous legal front over customer privacy, taking on the government for the past three years. This is the fourth lawsuit that Microsoft has filed including the company’s litigation challenging a U.S. search warrant for customer emails in Ireland.

The lawsuit filed Thursday in federal court in Seattle questions the legitimacy of the government’s demand for secrecy in all cases. Justice spokeswoman Emily Pierce said federal authorities are “reviewing’’ the filing and declined further comment.

Steve Lohr of The New York Times explained how the suit will help guarantee protects for Microsoft’s cloud:

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.

Dina Bass of Bloomberg related this case to a similar ones both Twitter and Yahoo are fighting:

Microsoft’s newest battle is similar to a pair of legal cases that involve Twitter Inc. and Yahoo! Inc., both of which are seeking to enhance transparency while trying to curb the government’s indefinite orders of secrecy, according to the complaints.

Twitter is fighting the government for permission to publicly disclose the precise number of so-called national security letters it receives from the FBI, beyond the current government limit that restricts reporting to bands of 1,000.

Last year the U.S. sought to bar Yahoo indefinitely from disclosing the existence of a grand jury subpoena. The government’s petition for secrecy was rejected by a federal judge in San Jose, California, who said the order would “amount to an undue prior restraint of Yahoo’s First Amendment right to inform the public of its role in searching and seizing its information.”