Microsoft will argue the DOJ is unconstitutionally trying to access private data by subpoenaing Microsoft and its third-party cloud servers
Microsoft will face off against the Department of Justice (DOJ) Monday in a dispute over Microsoft’s demand to inform its users when the government is seeking private user data.
In a case filed April 14, 2016, Microsoft sued the DOJ (led by now former Attorney General Loretta Lynch) over the right to inform its users about government-obtained warrants to search emails. The DOJ has issued over 2,574 so-called “secrecy orders” along with 5,624 total information requests in order to prevent Microsoft from informing data owners that their information is subject to government search.
Microsoft will argue that the Electronic Communications Privacy Act of 1986 (ECPA), which forces Microsoft to keep those warrants a secret, is unconstitutional under the guise of the Fourth Amendment’s protections against unlawful search and seizure.
“Before the digital age, individuals and businesses stored their most sensitive correspondence and other documents in file cabinets and desk drawers,” the company’s complaint reads, going on to note that that same data is now simply being stored digitally but subject to the same protections. “In both eras, the government had to give notice when it sought private information and communications, except in the rarest of circumstances.”
Microsoft is worried that the rise of cloud computing and remote servers controlled by third parties is being used to confuse who actually owns that data.
“The government, however, has exploited the transition to cloud computing as a means of expanding its power to conduct secret investigations.”
They will be arguing 18 U.S.C. Section 2705(b) is an “antiquated” section of the law that “sweeps too broadly” and “amounts to a substantial expansion of law enforcement’s ability to engage in secret search and seizure activity…”
Microsoft has a good record in court protecting user emails, winning a case last year when a court agreed with Microsoft it did not have to turn over Outlook emails stored abroad (in Ireland). They have also gotten written support from a number of media companies supporting their suit against the government. Those names include the Associated Press, Washington Post, National Public Radio, Fox News, and Seattle Times, among others.
This will be the latest in a string of legal disputes between major technology corporations and the United States government, as well as the first time battles over user privacy reach public discourse during the new Trump administration.
The battle between the FBI and Apple over the locked iPhone of San Bernardino shooter Syed Farook was a major story in the weeks prior to Microsoft’s filing of the lawsuit. Companies like Facebook and Google publicly went out of their way to back Apple’s opposition to the FBI demand. The US government eventually unlocked the phone with the help of Israeli startup Cellebrite.