Microsoft Corp. is taking the good fight against secrecy orders directly to Uncle Sam by suing the Department of Justice over the constitutionality of the existing provision under law.

The legal provision, as it currently exists, prevents companies such as Microsoft informing customers when their data has been accessed by a Federal Government agency when a gag order is issued.

According to reports, Microsoft is arguing that the secrecy provision under Section 2705(b) of the Electronic Communications Privacy Act, the section that enables the Government to gag companies, is unconstitutional under the Forth amendment, “which affords people and businesses the right to know if the government searches or seizes their property, and the First Amendment, which enshrines Microsoft’s rights to talk to its customers and to discuss how the government conducts its investigations—subject only to restraints narrowly tailored to serve compelling government interests.”

“People do not give up their rights when they move their private information from physical storage to the cloud. Microsoft therefore asks the Court to declare that Section 2705(b) is unconstitutional on its face,” the complaint adds.

Numbers

In a post to the Microsoft On The Issues blog, Microsoft President and Chief Legal Officer Brad Smith explained that the number of requests using this secrecy provision is remarkable and that there were often no end dates on such orders.

“The urgency for action is clear and growing. Over the past 18 months, the U.S. government has required that we maintain secrecy regarding 2,576 legal demands, effectively silencing Microsoft from speaking to customers about warrants or other legal process seeking their data. Notably and even surprisingly, 1,752 of these secrecy orders, or 68 percent of the total, contained no fixed end date at all. This means that we effectively are prohibited forever from telling our customers that the government has obtained their data.”

Interestingly Smith notes that there are times that secrecy orders may be truly appropriate, but nowhere near as many as are being used now.

To be clear, we appreciate that there are times when secrecy around a government warrant is needed. This is the case, for example, when disclosure of the government’s warrant would create a real risk of harm to another individual or when disclosure would allow people to destroy evidence and thwart an investigation. But based on the many secrecy orders we have received, we question whether these orders are grounded in specific facts that truly demand secrecy. To the contrary, it appears that the issuance of secrecy orders has become too routine.

After describing more details as to the legal ramifications of the case, Smith concludes with a paragraph that should be widely supported by most reasonably minded people, including all of Microsoft’s competitors.

Ultimately..It involves the fundamental right of people and businesses to know when the government is accessing their content and our right to share this information with them.

It’s not clear from reports when the case, Microsoft Corp v United States Department of Justice et al in the United States District Court, Western District of Washington, No. 2:16-cv-00537, will be heard by the court.

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