The legal privacy wars between tech giants and the United States government continue to heat up. First, Apple fought the federal government over iPhone encryption and now Microsoft is suing the U.S. Department of Justice and Attorney General Loretta Lynch over unconstitutional information requests and secretive customer data searches.
Microsoft is accusing the United States government of engaging in a massive and unlawful practice of searching through their customer’s information while at the same time demanding that Microsoft not discuss the searches publicly.
In the last 18 months alone, the U.S. federal government has made 5,624 demands from Microsoft for customer information. Almost 50% of these data demands contained gag orders that prohibits Microsoft from informing their customers that their personal information was being requested by the federal government. In addition, over 66% of these gag orders did not have a specific end date associated with them.
Microsoft is bringing this lawsuit against the feds because the company believes that people have a right to know when the federal government gets a warrant to search through their email communications and because Microsoft has a right to inform them when these searches happen.
The legal argument between Microsoft and the federal government concerns the 1986 Electronic Communications Privacy Act, a 30-year-old law which governs a person’s right to know when law enforcement is searching through their digital communications and activities.
In the physical world, people usually have to be told when police execute a search warrant to enter their home to search for criminal evidence. However, the 1986 Electronic Communications Privacy Act allows police to conduct computer-related searches in secret and stop any companies from alerting their customers about the searches.
Microsoft’s position is that people should not lose their privacy rights just because they move their personal information from the physical world to the virtual world. According to Microsoft’s lawsuit, the federal government has taken advantage of the move from physical data storage to computer storage in order to expand their power to engage in secret investigations.
Investigators like being able to conduct these searches secretly because people are not alerted that they are being investigated. However, according to Microsoft, the company is often required to keep these searches a secret from their customers long after the investigations have ended.
The Microsoft suit further accuses federal law enforcement of violating their First Amendment right to communicate with their customers about these searches. The company also claims that the federal government if violating people’s Fourth Amendment rights to be informed about these searches. The Fourth Amendment of the Constitution protects people from unreasonable searches and seizures.
U.S. courts have generally decided people’s Fourth Amendment protections also apply to their email communications. However, Microsoft’s lawsuit could be a precedent setting case in the areas of electronic privacy and Fourth Amendment issues, since it directly questions the constitutionality of the secret searches that have been used by the federal government over the past few years.
From Microsoft’s complaint:
The transition to the cloud does not alter the fundamental constitutional requirement that the government must — with few exceptions — give notice when it searches and seizes the private information or communications of individuals or businesses. […] People do not give up their rights when they move their private information from physical storage to the cloud.
This legal challenge is a direct attack on the privacy double standard that was put into place by the 1986 Electronic Communications Privacy Act and could cause part of that law to be ruled unconstitutional.