Microsoft drops suit over Justice Dept.'s secret data requests

The move comes after the Justice Department said it would scale back demands for customer data without their knowledge.

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Steven Musil
3 min read

Microsoft chief counsel Brad Smith.

Jean-Christophe Verhaegen/AFP/Getty Images

Microsoft said Monday it will drop its lawsuit against the US Justice Department after the agency moved to scale back the use of gag orders.

The software maker last year sued the Justice Department over a key legal tool used by the US government, which forces companies to turn over data about their customers but bars them from alerting the people being investigated. Microsoft had argued that the gag orders, often of infinite duration, violate the company's free-speech rights.

Microsoft's dropping of the lawsuit comes in response to new guidelines quietly issued last week by the Justice Department that end routine use of such orders in demands for customer data.

Prosecutors are now required to "conduct an individualized and meaningful assessment regarding the need for protection from disclosure" prior to seeking a gag order and to "only seek an order when circumstances require," according to a memo issued by Deputy Attorney General Rod Rosenstein and obtained by Geekwire.

Brad Smith, Microsoft's chief legal officer, called the Justice Department's new policy "an important step for both privacy and free expression.

"Until today, vague legal standards have allowed the government to get indefinite secrecy orders routinely, regardless of whether they were even based on the specifics of the investigation at hand," Smith wrote in a company blog post. "That will no longer be true."

Tech companies have sought legal permission for greater transparency about the government requests since 2013. At that time, reports based on documents leaked by former NSA contractor Edward Snowden alleged that the requests provided the NSA with "direct access" to their servers through a so-called Prism program. The companies have denied that allegation and petitioned the government to allow them to publish, in detail, the types of national security requests they have received.

In April 2016, Microsoft asked a federal court in Seattle to strike down portions of the Electronic Communications Privacy Act, arguing that the 1986 law violated customers' Fourth Amendment protections because the government wasn't required to notify them when their records were obtained.

Microsoft also argued that the practice of using gag orders had become too common. In the 18 months before it filed its challenge, Microsoft said it had been forced to maintain secrecy in 2,576 cases -- two-thirds of which carried permanent gag orders.

Despite the Justice Department's new approach to search requests, Microsoft called on Congress to change the law. The company sought passage of the ECPA Modernization Act, a bipartisan bill introduced in July that would address secrecy orders.

Microsoft also indicated it wasn't averse to further litigation on the issue.

"We applaud the Department of Justice for taking these steps, but that doesn't mean we're done with our work to improve the use of secrecy orders," Smith wrote. "We have been advocating for our customers before the DOJ for a long time, and we'll continue to do that. We will continue to turn to the courts if needed."

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