- Microsoft has filed a lawsuit challenging the U.S. government's claims that it can block companies from telling their customers when their data has been examined by federal agents.
- The company claims that the current Electronic Communications Privacy Act (ECPA) violates the Constitution when it allows court orders to keep "customers in the dark" when the government is after their electronic communication.
- To avoid notifying a company's customers that there is a warrant for their private communication, the government has to have a "reason to believe" that informing a customer could impede an investigation, Microsoft alleges.
As customers continue to store information in the cloud, Microsoft says the government has used the statute to more frequently obtain secrecy orders.
"People do not give up their rights when they move their private information from physical storage to the cloud," Microsoft said in the lawsuit. "The government, however, has exploited the transition to cloud computing as a means of expanding its power to conduct secret investigations."
The government has issued gag orders for Microsoft for 2,576 legal demands in the past 18 months, according to Brad Smith, the company's president and chief legal officer.
Of those gag orders, 68% had no end date, Smith said, meaning Microsoft is permanently prohibited from notifying a customer that the government has its data.
"We believe that with rare exceptions consumers and businesses have a right to know when the government accesses their emails or records," Smith said in Microsoft's announcement, and the government should break its routine habit of keeping its legal demands secret.
The ECPA was made law in 1986, before the advent of widespread cloud computing. But this is not the first time this week that law has come up. Seen as antiquated in light of new technologies, on Wednesday the U.S. House Judiciary Committee approved legislation that would require authorities get a warrant to obtain e-mail stored in the cloud. The provision would close a longstanding loophole that allows the government to use a subpoena to get communications if they are more than six months old.
There is no date set for a floor vote on the legislation and the bill has a long way to go before it becomes law. Similar versions of the bill have been debated for almost 10 years.