Microsoft is once again taking issue with the U.S. government, by challenging a federal judge’s “secrecy order” barring it from telling a large corporate client that the U.S. government has issued a warrant for the company’s data. The action renews a legal clash that has already led to the Justice Department agreeing to curb such orders.
The tech giant argues that the gagging order is inappropriate, since it believes its customers own their data and should therefore be the ones that control access to it.
Microsoft General Counsel Dev Stahlkopf wrote in a blog post last week:
When a law enforcement agency presents Microsoft with a legally valid warrant, court order or subpoena requesting data that belongs to one of our enterprise customers, we seek to redirect that request to the customer, …And in the vast majority of cases, that is exactly what happens. There are times, however, when the government comes to us for data and prevents us from telling our enterprise customers that it is seeking their data.
Microsoft said that practice is fine when it comes to investigations into major crime and terrorism, where law enforcement agencies obviously need to operate in secret. But in most cases, Microsoft sayid, the secrecy orders go to far, and it isn’t at all comfortable with this.
On Sept. 5, 2018, Microsoft challenged a secrecy order issued by a federal magistrate judge in Brooklyn, New York in connection with a federal national security investigation, …Based on the limited information available to us in this case, we feel the secrecy order was too broadly drawn and is inconsistent with the U.S. government’s policy that secrecy orders be narrowly tailored.
Microsoft argued that in cases such as this, the feds should be able to identify a high-level executive at the company who can be notified of any data requests without jeopardizing their investigation. But in this case, a judge rejected Microsoft’s request and left the secrecy order in place.
“We have challenged that order in the lower court, and we will pursue an appeal in the appellate court if necessary,” Stahlkopf wrote.
Constellation Research Inc. analyst Holger Mueller said secrecy orders of this kind put cloud providers such as Microsoft in a difficult position, because their loyalties primarily lie with their customers.
“It’s good to see Microsoft continuing to fight the good fight, pushing back on government requests and battling them in the courts,” Mueller said. “This will be one of the lawsuits to watch as it’s relevant for data privacy and ownership.”
Microsoft has waged a long battle against the U.S. government over its use of secrecy orders. One of the earliest cases dates back to 2014 when the company successfully blocked an FBI secrecy order relating to an Office 365 customer. And in 2016, Microsoft filed a lawsuit against the Department of Justice over its repeated use of gag orders. The DOJ settled out of court a year later, agreeing to limit their use.
“As a cloud services provider, Microsoft has an important role in forcing governments to go before impartial judges to justify their conduct,” Stahlkopf said. “Our thorough review of law enforcement demands helps ensure that governments are respecting the rights of internet users around the world.”