Microsoft says it’s dropping a suit against the U.S. Justice Department that targeted a tactic commonly used by prosecutors to prevent tech companies from informing their customers when investigators seek access to their emails and other personal data stored in the cloud.
The move follows the Justice Department’s announcement of a new binding policy that requires prosecutors 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.”
[Read the new policy from Deputy Attorney General Rod Rosenstein: PDF, 3 pages.]
“This new policy limits the overused practice of requiring providers to stay silent when the government accesses personal data stored in the cloud. It helps ensure that secrecy orders are used only when necessary and for defined periods of time,” said Brad Smith, Microsoft president and chief legal officer, in a blog post. “This is an important step for both privacy and free expression. It is an unequivocal win for our customers, and we’re pleased the DOJ has taken these steps to protect the constitutional rights of all Americans.”
Smith said the new policy “should diminish the number of orders that have a secrecy order attached, end the practice of indefinite secrecy orders, and make sure that every application for a secrecy order is carefully and specifically tailored to the facts in the case.”
He called on Congress to go further: “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. … Today’s policy doesn’t address all of the problems with the Electronic Communications Privacy Act (ECPA) — the law at the heart of this issue and we renew our call on Congress to amend it.”
This suit is not to be confused with Microsoft’s separate lawsuit against the U.S. government over email from a Microsoft customer stored in the company’s Ireland data center. That case, which centers on whether a U.S. search warrant can apply to data stored in an overseas data center, is set to be heard by the U.S. Supreme Court.
Microsoft originally filed the suit over U.S. gag orders in April 2016 in U.S. District Court in Seattle, asking a federal judge to declare unconstitutional the provision of federal law allowing the practice.