Microsoft’s business customers “regularly convey to us their strong desire to know when the government is obtaining their data“, Smith said, while adding that individual customers should have the same right.
18 U.S.C. § 2705(b) violates the First and Fourth Amendments since the Constitution should “afford people and businesses the right to know if the government searches or seizes their property”.
As people and businesses store more information on their electronic gadgets, or online in corporate data centers, “these companies are increasingly the intermediary between the government and our own privacy”, said Daskal. Microsoft said that between September 2014 and March 2016, Microsoft received 5,624 federal demands for customer information or data, almost half of which (2,576) were accompanied by secrecy orders, “forbidding Microsoft from telling the affected customers that the government was looking at their information”. “People do not give up their rights when they move their private information from physical storage to the cloud“, Microsoft says in the lawsuit.
Its customers have been asking the company about government surveillance, Smith said, suggesting that the issue could hurt Microsoft’s ability to win or keep cloud customers.
Smith goes on to say that what’s even more surprising is that 68 percent of the total secrecy orders (which is equivalent to 1,752), have “no fixed end date at all”.
Microsoft’s lawsuit, somehow both defensive and offensive, is the latest in a growing trend of tech companies making privacy issues matters of public importance – both out of what they consider civic duty, and out of consumer demand. Two previous complaints were settled – in one case by allowing Microsoft to disclose the number of legel requests it receives and in another by the government’s withdrawal of a National Security Letter.
In a tweet today, Kevin Bankston, director of the Open Policy Institute at the New America Foundation, said, “This is a First Amendment fight that needed to get picked and I’m glad Microsoft picked it. Just as in the real world with physical seizures, secrecy in digital seizures should be the exception and not the rule”. Reuters shares that Microsoft’s lawsuit came a day after reforms of the ECPA was voted for by the U.S. congressional panel. A smart criminal would delete the files and change how they communicate.
It is unclear if the bill will advance through the Senate and become law this year.
Calabrese cited a 2012 paper by U.S. Magistrate Judge Stephen Smith that criticized the federal government’s “secrecy parade” through the ECPA’s docket system. It’s suing the federal government on the subject of secret government access to your online information.