Microsoft’s lawsuit against the U.S. government for the right to tell its customers when a federal agency is looking at their emails is getting widespread support by privacy advocates. For many, Microsoft’s stance lends an important and powerful voice to ongoing efforts to reform the Electronic Communications Privacy Act that is at the heart of Microsoft’s beef with the government.
“We applaud Microsoft for challenging government gag orders that prevent companies from being more transparent with their customers about government searches of their data,” said Andrew Crocker, staff attorney with the Electronic Frontier Foundation.
For Crocker and Microsoft, the stance is tied to bigger issues such as free speech and First Amendment rights. “In nearly all cases, indefinite gag orders and gag orders issued routinely rather than in exceptional cases are unconstitutional prior restraints on free speech and infringe on First Amendment rights,” he said.
The software giant’s chief legal officer Brad Smith said Microsoft said it has been required to maintain secrecy about more than 2,500 legal demands over the past 18 months. More than 1,752 (68 percent) of those secrecy orders had no end date. Smith noted that, “This means we effectively are prohibited forever from telling our customers that the government has obtained their data.”
Microsoft’s lawsuit challenges gag order provision in the Electronic Communications Privacy Act (ECPA) that allows courts to force companies that offer cloud storage to say nothing when asked to turn over customer data. Reforms of ECPA have been long fought by privacy advocates such as the Electronic Privacy Information Center.
Alan Butler, senior counsel at Electronic Privacy Information Center said that such secret orders by the government should be the exception, but increasingly the requests have become the rule. “Notice is one of the key protections provided under the Fourth Amendment, and law enforcement efforts to delay or otherwise restrict notice should be viewed skeptically by the courts,” he said.
For the ACLU, it used Microsoft’s lawsuit as an opportunity for Congress to implement reforms on the Electronic Communications Privacy Act. “If Congress fails to include those changes as it considers ECPA reform, then the courts should step in, including in Microsoft’s case, to end the government’s constitutional failure to provide notice,” said Alex Abdo, staff attorney with the ACLU in a statement.
Microsoft’s lawsuit is the latest in a string of high-profile battles with the government over privacy issues. Last week, tech firms and privacy advocates banded together to voice opposition to a draft bill, Compliance with Court Orders Act of 2016. Then, of course, there is Apple and its battle with the government’s demands to help it crack its own encryption in order to break into an iPhone.
Controversial aspects of ECPA have been debated for years. In fact, earlier this week the House Judiciary Committee amended a current ECPA reform bill — the Email Privacy Act — by removing a provision that also attempts to fix notice requirement. The timing of Microsoft’s suit is fortuitous, Butler said.
“I think this lawsuit will provide a much needed venue to address the lack of notice for email warrants,” Butler said. “Congress has had the opportunity in the past to address this problem, but has not yet taken the steps necessary to do so. The court should reaffirm that notice is a critical component of government searches under the Fourth Amendment,” he said.
As for Microsoft’s hope of victory? EFF’s Crocker said Microsoft has a strong case. “Given the numbers Microsoft lists in the complaint and the statute’s failure to comport with the First Amendment, I think there’s a pretty good likelihood the suit will at the minimum force some changes to the government’s practices or ECPA,” Crocker said.
Because of the secret nature of such requests, it’s impossible to tell how many secret government information requests businesses receive. One estimate from a 2012 report authored by Texas Southern University’s Thurgood Marshall School of Law called “Gagged, Sealed & Delivered” (PDF), estimates 30,000 electronic surveillance orders approved by magistrate judges each year.
“Individuals have a constitutional right to receive notice when their persons, papers, and effects have been subject to search. The denial of this right is a harm, and prevents realistic engagement by the public on an issue of national importance (privacy),” EPIC’s Butler said.
