Microsoft Sues U.S. Government: Secret Data Retrieval Is Unconstitutional

Microsoft just sued the Department of Justice on your behalf. The goal: to better protect your personal data, and to ensure that the government can no longer violate the United States Constitution. This “data” comprises your emails, messages, photos, and private information. In effect, it’s anything and everything you store on the cloud.

The government routinely employs antiquated statutes to both acquire users’ private data and to bind the protectors of that data — the companies or corporations; in this case, Microsoft — to silence. In other words, the government says that person X might be hiding something in their emails, messages, or other personal data. Then, the government tells Microsoft that it’ll be needing to look at and store all of person X’s data. The government adds a caveat: no, Microsoft, you cannot inform person X — your customer, who’s entrusted his or her data with you — that we’ve accessed their data.

Microsoft, which has dealt with 2,600 such cases in the past 18 months alone, has had enough.

Over the past 18 months, federal courts have issued nearly 2,600 secrecy orders silencing Microsoft from speaking about warrants and other legal process seeking Microsoft customers’ data; of those, more than two-thirds contained no fixed end date … These twin developments — the increase in government demands for online data and the simultaneous increase in secrecy — have combined to undermine confidence in the privacy of the cloud and have impaired Microsoft’s right to be transparent with its customers, a right guaranteed by the First Amendment.

It’s not the first time that Microsoft has sued the federal government — it’s the fourth. (And this one may be different, riding, as it is, on Apple’s coattails.) Microsoft’s first lawsuit made it possible for the company to disclose how many such “requests” it receives. The second was touted as a victory in “protecting customer rights.” The third, which challenges a U.S. search warrant for a non-citizen-customer’s email in Ireland, is currently pending.

With this lawsuit, though, Microsoft is shooting for the moon. It’s arguing that the government routinely violates the Constitution, and, thereby, citizens’ fundamental rights. How? It’s a violation of the the First Amendment, Microsoft argues, to disallow Microsoft to disclose to targeted users the fact that their data is being accessed. And the Fourth Amendment grants citizens “the right to know if the government searches or seizes their property,” the company points out.

Microsoft says that the rapid transition to cloud-based storage gives people a false sense of security. If the government were breaking into citizens’ homes and digging through their physical private documents, the constitutional violations would be blatant. The government is doing exactly that, only it’s doing so behind a computer screen’s veil. Then, it’s precluding the citizen’s knowledge of these search and seizures, invoking laws that were written before the cloud-based storage even existed. “People,” the lawsuit’s authors argue, “do not give up their rights when they move their private information from physical storage to the cloud. … The government… has exploited the transition to cloud computing as a means of expanding its power to conduct secret investigations.”

The relevant statutes here are U.S. Code § 2703 and § 2705. You can read Microsoft’s full lawsuit, which will be heard in Seattle, Washington, here. Microsoft President and Chief Legal Officer Brad Smith also wrote about the lawsuit; you can read that here.