Microsoft this morning filed suit against the U.S. Justice Department, seeking to overturn a provision of U.S. law that allows the government to prevent tech companies from informing their customers when investigators are seeking their personal information from Microsoft servers.
GeekWire spoke with Brad Smith, the company’s president and chief legal officer, for more details. Continue reading for edited excerpts.
Q: Why did you decide that now was the time to take legal action on this law?
Brad Smith: I think it is in part because of recent events. Part of this included a particular case where the government argued that we should be held in contempt of court because we wanted to go argue our case on the secrecy order before we turned over our customers’ emails. Contempt of court by definition raises the specter of fines against the party. It’s the kind of thing that definitely causes us to step back and take a look at this issue more broadly. We pulled the numbers and looked at the trends. It was surely notable to see such a large number of secrecy orders: over 2,500 in 18 months basically amounts to 5 secrecy orders every day of the week including weekends and holidays.
I think it was even more striking to see that 68% of the secrecy orders had no time limit at all. We concluded that we were facing a recurring issue that increasingly is raising fundamental rights for our customers. On that basis, we concluded that we really did need to take this issue to the courts.
Q: How confident are you that you’ll be able to get this overturned on constitutional grounds?
Brad Smith: I think we have a very strong argument. It’s always important to bring the right case on the right facts and for the right reasons. I think this is the right case. These are two fundamental constitutional rights in this country, under the 4th Amendment and the 1st Amendment. I think we’ve got very strong facts. If you look at the numbers, the numbers are striking. If you look at the high percentage of orders that have no time limit, I think that’s striking. If you look at how this area of the law is being applied in comparison to others, that, too, is striking because as we really studied this, what we found is that in most areas of the law, the government can get a secrecy order but it’s typically for 30 days or 90 days. It then has to go back and make the case that the order needs to be renewed.
So we have a real outlier in our view in terms of federal law and government practice and I think we’re bringing this case for the right reasons and that’s not actually what a case tends to turn on. It tends to turn on more the facts and the law, but I think it’s clear and hopefully will be clear that we’re raising this because of what we’re hearing from our customers. We’re raising this because of the implications for where technology is going. We’re bringing this to a courthouse in what properly has been become known as Cloud City. This is about the future of cloud technology. It’s about the future of privacy in the cloud. I think the issue is the right issue at the right time at the right place.
Q: Have you gotten any indication from other tech companies that they’ll be filing amicus briefs or otherwise supporting you in this lawsuit?
Brad Smith: We’ve definitely had conversations with others in the tech sector. I definitely believe that the kinds of concerns we’re raising are shared by others so I’m optimistic that as this progresses, we’ll hear from others as well.
Q: It’s interesting because you’re complaint is not about a specific incident or situation. It’s a general challenge on constitutional grounds to the provision. Given that, did you think about filing as joint plaintiffs with a coalition of other companies?
Brad Smith: We considered a broad range of options. What we knew was the data we had ourselves, and we understood the facts and we knew we could move quickly. And we thought that to the extent that others have views, there are plenty of opportunities in different ways for those views to be considered.
Q: What would the average person out there be surprised to know about this process and the secrecy orders that you’re required to follow?
Brad Smith: Well I think there’s 2 things that are worth thinking about in that to answer that questions, which is a great question. First, I think that people probably should be surprised that the government is now so routinely seeking secrecy orders that have no end date at all. I don’t know that people have thought about this deeply in the past but the practice in this country is that secrecy’s been the exception not the norm. It required a standard of proof by the government and it was understood to last for only as long as needed. When you get over 1,700 secrecy orders that are permanent, it really means that they will last forever.
Second, I think this is an issue of real importance to businesses. This isn’t just a consumer issue. It is very important to businesses to fend themselves when the government is investigating them. Businesses want to know when their internal documents are being turned over to the government. They want their lawyers to have the opportunity to review the documents. They want their lawyers to have the opportunity to go to court if there is a case that needs to be argued but none of that is possible if the business doesn’t even know that the government is obtaining their emails and I think for most people in business, that is both disconcerting and sometimes even shocking.