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Microsoft vs DoJ: Redmond giant sues US Department of Justice for greater transparency

Microsoft wants to keep secrecy "the exception, not the rule"

Gavel and law book

Tech giant Microsoft is taking the US Department of Justice (DoJ) to court over the secrecy surrounding data requests made by law enforcement agencies, claiming many of the non-disclosure orders are unconstitutional.

In a blog post announcing the decision, Brad Smith, Microsoft's President and chief legal officer, said the company recognises the need for secrecy in some cases, where disclosing the existence of the warrant to the data subject "would create a real risk of harm to another individual or when disclosure would allow people to destroy evidence and thwart an investigation". However, he argues that "it's becoming routine for the US government to issue orders that require email providers to keep these types of legal demands secret. We believe that this goes too far and we are asking the courts to address the situation".

"The urgency for action is clear and growing," he continues. "Over the past 18 months, the US government has required that we maintain secrecy regarding 2,576 legal demands, effectively silencing Microsoft from speaking to customers about warrants or other legal process seeking their data. Notably and even surprisingly, 1,752 of these secrecy orders, or 68 percent of the total, contained no fixed end date at all. This means that we effectively are prohibited forever from telling our customers that the government has obtained their data."

In Microsoft's opinion, which it argues in the filing, this behaviour violates the Fourth Amendment, which guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized," and the Fifth Amendment, which states: "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Smith adds that he hopes the DoJ will adopt a new policy with regards to secrecy orders and that, should it not, then the US Congress will become involved to effectively force its hand.

This is not the first time Microsoft has clashed with the DoJ. As Smith notes in his blog, the company has successfully filed three previous suits against the DoJ and its various departments and it is still engaged in a long-running court battle with the FBI over data held in its Irish data centre.

The full text of this latest filing can be read here.

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