By David Meyer
October 24, 2017

In April of last year, Microsoft sued the United States government for the right to inform customers when authorities are rifling through their emails on Microsoft’s servers. The government was using gag orders in thousands of investigations each year, with no fixed end date for the enforced secrecy.

Now Microsoft is winding down its case because the government is ending its routine use of these gag orders. Last week, Deputy Attorney General Rod Rosenstein issued a memo to Department of Justice attorneys and agents saying search orders should only come with a gag element when there is a real “need for protection from disclosure,” and the secrecy mandate shouldn’t last any longer than necessary.

In a Monday blog post, Microsoft legal chief Brad Smith said the new policy “should diminish the number of orders that have a secrecy order attached, end the practice of indefinite secrecy orders, and make sure that every application for a secrecy order is carefully and specifically tailored to the facts in the case.”

The government’s routine use of gag orders was based on a broad interpretation of a 1986 law called the Electronic Communications Privacy Act (ECPA), which was supposed to extend traditional phone-tapping laws to transmissions from computers. Microsoft, which still wants ECPA revised despite the DOJ’s new policy, says the law is ill-suited to the modern reality of cloud-based storage.

“We understand there are instances in which the government might need a secrecy order for legitimate reasons. This could include situations where disclosing the government’s request for data could create a risk of harm to an individual. It could also include cases where disclosure would thwart the government’s investigation, or lead to the destruction of evidence,” Smith wrote.

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“But our lawsuit was based on a growing and disturbing trend. We highlighted the fact that the government appeared to be overusing secrecy orders in a routine fashion—even where the specific facts didn’t support them—and were seeking indefinite secrecy orders in a large number of cases.”

In one 18-month period, the government had hit Microsoft with 2,576 gag orders, just over two-thirds of which had no fixed end date. This, Microsoft argued, flew in the face of both the Fourth and First Amendments—the Fourth because people are supposed to know when their property is subject to search and seizure, and the First because Microsoft should be able to tell them.

The software giant was aided in its fightback by various other companies, civil liberties and business groups, and former law enforcement officials. This case was separate to the ongoing battle between Microsoft and the DOJ over U.S. authorities’ access to emails stored in Microsoft’s overseas servers.

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