According to Microsoft Corp. the company has filed a lawsuit against the U.S. Department of Justice in order to void a law that currently forces the tech company to hand over customer data to law enforcement.

Microsoft says that it is forced to hand over customer emails and other data without their knowledge. The case features some of the same elements present in the Apple versus FBI legal battle over breaking the encryption on a suspect’s iPhone, writes Dina Bass for Bloomberg.


Microsoft engaged in long-running legal battle over customer privacy

While Apple refused to undermine customer privacy by providing a backdoor into the iOS operating system, Microsoft has had its own legal battle for over 2 years. Lawyers for the tech company allege that the 1986 Electronic Communications Privacy Act is unconstitutional. They cite the company’s First Amendment free speech rights and its customers’ Fourth Amendment right to know if the government has searched or seized their property.

Due to the law Microsoft is essentially subject to an unlimited gagging order, according to the complaint filed in Seattle. Microsoft not only wants to protect civil liberties but also its ability to sell services that clients can trust, it said.

“It’s very important for businesses to know when the government is accessing their file room, whether the file room is down the hall or in the cloud,” said Microsoft President and Chief Legal Officer Brad Smith, noting that consumers and privacy groups have expressed concern about the issue. “People shouldn’t lose their rights simply because technology is moving to the cloud.”

Cloud computing open to abuse from authorities

The shift to the cloud has increased the number of warrants seeking data and government abuse of its powers, allege Microsoft. The law that the company is taking issue with was enacted 20 years before cloud computing became common.

“The government, however, has exploited the transition to cloud computing as a means of expanding its power to conduct secret investigations,” according to a copy of the complaint provided by Microsoft.

Government search warrants are subject to secrecy orders that mean Microsoft cannot tell customers about the requests for a set period of time, or sometimes forever. Microsoft has received nearly 2,600 secrecy orders in the past 18 months, with over two-thirds of those being unlimited.

 “When you extrapolate it to all the providers, the number of gags must be astounding,” said Greg Nojeim, senior counsel at the Center for Democracy & Technology, which Microsoft briefed before filing the suit.

Tech companies criticize existing laws

Despite the suit Microsoft acknowledged the fact that in some cases the gagging orders are justified. Customers could otherwise tamper with evidence. However the company says that the statute is too broad.


Another case has also been filed concerning files stored in overseas data centers and whether the U.S. government can demand to see them. Microsoft has so far refused to hand over data related to a narcotics investigation that is stored in Ireland. An appeals court in New York is set to rule on the matter.

Microsoft claims that it hopes to work with U.S. lawmakers on a law that would bring the statute up to date in the age of cloud computing. The dispute could also be resolved if the Justice Department voluntarily changes its use of the gagging orders, said Smith.

Microsoft also said it plans to work with Congress to pass a law that would be more modern and better suited to cloud computing. Another way to resolve the dispute would be for the Justice Department to voluntarily change the way it uses these orders, Smith said.

“The concerns we are articulating are shared broadly in the tech sector,” Smith said. “I fully expect we will hear from a number of other tech companies.”