Microsoft drops suit against US Department of Justice

Microsoft drops suit against US Department of Justice

Microsoft [corporate website] announced plans to drop its lawsuit against the US Department of Justice (DOJ) [official website] on Monday after the DOJ issued new guidelines in an effort to curb its practice of using secrecy orders to silence companies from alerting its customers when their personal information is accessed by the federal government.

Microsoft’s President and Chief Legal Officer Brad Smith stated [announcement] that the DOJ move is “an important step for both privacy and free expression” and the company is pleased that “the DOJ has taken these steps to protect the constitutional rights of all Americans.”

Microsoft filed the suit [JURIST report] in the US District Court for the Western District of Washington [official website] in Seattle in April 2016 alleging that § 2705(b) of the Electronic Communications Privacy Act (“ECPA”) [DOJ backgrounder] violates the First and Fourth [GPO backgrounder, PDFs] amendments to the US Constitution for being overly broad and not containing any limit on the length of time a court secrecy order can be active.

The Fourth Amendment violation was premised on the ground that § 2705(b) “provides a mechanism for the government to search and seize customers’ private information without notice to the customer, based upon a constitutionally insufficient showing.” The First Amendment violation was grounded on the fact that the secrecy orders under § 2705(b) “have impaired Microsoft’s right to be transparent with its customers.” The complaint further alleged that:

Section 2705(b) sweeps too broadly. …The statute sets no limits on the duration of secrecy orders, and it permits prior restraints any time a court has “reason to believe” adverse consequences would occur if the government were not allowed to operate in secret. … It also permits those restraints based on the application of purely subjective criteria, such as a finding that notice would “jeopardiz[e] an investigation” in unspecified ways or “unduly delay a trial.” … [and] does not require the government to establish that the continuing restraint on speech is narrowly tailored to promote a compelling interest.

Smith further highlighted that 2,576 legal demands were received from the federal government in an 18-month period leading up to the filing of the complaint, of which 68 percent appeared to be “indefinite demands for secrecy.” Smith added: “In short, we were prevented from ever telling a large number of customers that the government had sought to access their data.”

Smith expressed Microsoft’s gratitude to the “nearly 90 technology companies, media enterprises and organizations, academics, business groups and companies, civil liberties groups and former law-enforcement officials who signed friend-of-the-court briefs in this case.” Smith additionally thanked the ACLU, and others in the business and legal communities for their “support for reforms and new legislative solutions.”

While applauding the DOJ for taking the necessary steps to curb its alleged unconstitutional practices and making the announcement of Microsoft’s decision to dismiss the lawsuit, Smith also expressed hope that “Congress will make this positive step forward more permanent by updating outdated laws to better protect our digital rights while still enabling law enforcement to do its job.”