Microsoft sues DOJ over secrecy orders

Microsoft sued the Justice Department on Thursday, asking a federal court to strike down a law that gives the government the authority to prevent technology companies from telling their customers when their data is handed over to authorities. 

The tech giant is challenging the so-called gag orders that can be placed on technology companies when they receive subpoenas, warrants or other court orders demanding a customer’s emails or records stored in the cloud. 

{mosads}The technology company argues the law violates the Fourth Amendment and the First Amendment. 

The gag orders are not a rare occurrence. Microsoft said it has received 2,576 of them in the past 18 months, and about 70 percent did not have a fixed date when they would be lifted. 

“The transition to the cloud does not alter people’s expectations of privacy and should not alter the fundamental constitutional requirement that the government must — with few exceptions — give notice when it searches and seizes private information or communications,” Microsoft President Brad Smith said in a blog. 

The Electronic Communications Privacy Act (ECPA) allows the government to block technology companies from disclosing the existence of court orders when there is “reason to believe” that the disclosure could endanger a life, jeopardize an investigation or cause a target to flee, tamper with evidence or intimidate a witness. 

The company argues that “reason to believe” standard is too broad and that there should be limits on the length. 

ECPA is currently the subject of reform efforts in Congress, and a House floor vote is expected to be scheduled this month. The focus of the legislation is warrant requirements, but the legislation does set limits on the amount of time each gag order can last. 

“If the DOJ doesn’t act, then we hope that Congress will amend the Electronic Communications Privacy Act to implement reasonable rules,” Smith said. “In fact, secrecy provisions in ECPA today are out of step with other U.S. laws that contain clearer limitations on secrecy provisions and allow law enforcement flexibility for extensions.”

This is the fourth recent lawsuit Microsoft has filed against the government on similar privacy issues. It continues to battle the government in an appeals court over the disclosure of an email account stored oversees. In 2013, it publicly vowed to challenge many of the secrecy orders for its business customers. 

— Updated at 2:10 p.m.