Microsoft Sues Justice Department: 'Keeping Secrecy The Exception, Not The Rule'

"This morning we filed a new lawsuit in federal court against the United States government," a recent blog post by Microsoft Corporation MSFT President and Chief Legal Officer Brad Smith read.

The lawsuit has been initiated "to stand up for what we believe are our customers' constitutional and fundamental rights – rights that help protect privacy and promote free expression," Smith continued. "This is not a decision we made lightly, and hence we wanted to share information on this step and why we are taking it."

The Complaint

The Microsoft complaint filed read, "Microsoft brings this case because its customers have a right to know when the government obtains a warrant to read their emails, and because Microsoft has a right to tell them."

The filing went on, "Yet the Electronic Communications Privacy Act (‘ECPA') allows courts to order Microsoft to keep its customers in the dark when the government seeks their email content or other private information, based solely on a ‘reason to believe' that disclosure might hinder an investigation. Nothing in the statute requires that the ‘reason to believe' be grounded in the facts of the particular investigation, and the statute contains no limit on the length of time such secrecy orders may be kept in place."

First And Fourth Amendment Violations

Microsoft elaborated on how the investigative techniques that follow the statute "violates both the Fourth Amendment […] and the First Amendment."

"This statute violates both the Fourth Amendment, which affords people and businesses the right to know if the government searches or seizes their property, and the First Amendment, which enshrines Microsoft's rights to talk to its customers and to discuss how the government conducts its investigations – subject only to restraints narrowly tailored to serve compelling government interest. People do not give up their rights when they move their private information from physical storage to the cloud.

"Microsoft therefore asks the Court to declare that Section 2705(b) is unconstitutional on its face."

Smith concluded his blog post on the lawsuit by stating, "As I noted at the beginning, we don't take lightly this type of action – filing a lawsuit against any government. We only do so when we believe that critical principles and important practical consequences are at stake. Today's lawsuit is the fourth public case we've filed against the U.S. government related to our customers' right to privacy and transparency.

"The first lawsuit resulted in a good and appropriate settlement allowing us to disclose the number of legal requests we receive. The second resulted in the government withdrawing a National Security Letter after we challenged a non-disclosure order attached to the letter. The third, a challenge to a search warrant for customer email in Ireland belonging to a non-US citizen, is pending in the U.S. Court of Appeals for the Second Circuit [….] Ultimately, we view this case as similar to the other three that we have filed. It involves the fundamental right of people and businesses to know when the government is accessing their content and our right to share this information with them."

Microsoft is trading slightly up on the day at $55.49.