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Microsoft sues US government over privacy issue

By Reuters | April 15th 2016

Microsoft filed a lawsuit Thursday against the U.S. government over indefinite gag orders that prevent it from speaking about law enforcement request for data.

In the case filed in the U.S. District Court for the Western District of Washington, Microsoft asked the judge to declare the Electronic Communications Privacy Act unconstitutional in allowing courts to require tech companies to keep secret when the government seeks their customers' email content or other private information.

The lawsuit, which named the Department of Justice and Attorney General Loretta Lynch as plaintiff, argued that the law violates both the Fourth Amendment, which gives people and businesses the right to know if the government searches their property, and the First Amendment, which protect Microsoft's right to let its customers know the government searches.

Microsoft has previously complied with court orders to allow law enforcement to access its customers information, and it accepts the secrecy around government warrants when necessary.

What's really at issue is that the company received too many court orders requiring it keep government requests for data under wraps, a situation being called as "routine" by Microsoft president and chief legal officer Brad Smith.

Smith said in a blog post that over the past 18 month, courts have issued 2576 secrecy orders to the company, and 68 percent of them contained no fixed end date.

"This means we effectively are prohibited forever from telling our customers that the government has obtained their data," he said.

The company complained that the issue has had consequences for its rapidly increasing cloud computing business, which allows individuals and businesses to keep their documents on remote servers in data centers instead of local computers and on-premises servers.

"The government, however, has exploited the transition to cloud computing as a means of expanding its power to conduct secret investigations," the company said in its lawsuit.

"The 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 urged the Department of Justice to adopt a new policy that sets reasonable limitations on the use of those types of secrecy orders and suggested that Congress amend the Electronic Communications Privacy Act to implement reasonable rules, if the department does not act.

Thursday's lawsuit is the fourth public case Microsoft has filed against the U.S. government regarding its customers' right to privacy and transparency. The first one resulted in a settlement allowing the company to disclose the number of legal requests it receives. The second one resulted in the government withdrawing a National Security Letter, to which a attached non-disclosure order was challenged. And the third, which involves the government investigation of customer data stored in Ireland, is pending in an appeals court.

The current lawsuit is another case highlighting the growing tensions between tech companies and the U.S. government over privacy issue. Apple has recently challenged a court order which required it to work with the government on hacking into the phone of a terrorist killer. The government finally scrapped its request for Apple's assistance.

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