This is turning into an all out cyber-war.
First Apple stood up to the federal government. They refused to compromise the security of iPhone users by creating a backdoor that would give the FBI a way to hack into the phone used in the San Bernadino case. Then, the FBI found a workaround.
Now, Microsoft has sued the U.S. government. The issue is related to how one of the largest and most well-known companies in tech (they have a market capitalization of $443B) has the constitutional right to inform customers when there is an inquiry about an email and also how they can protect all customers who store data in the cloud.
According to the suit, Microsoft has received 2,600 secrecy orders in the past 18 months, blocking the company from letting those customers know they were under investigation. Most tech companies comply with these court orders, but Microsoft is suing over the issue of informing the customer about the warrant. The suit claims the demands have compromised the security of cloud storage for emails and the rights of free speech and the Fourth Amendment rights over search and siezure.
The underlying complaint from Microsoft has to do with keeping customers in the dark about investigations. It’s not a comment about any ongoing investigations, the suspected criminal behavior, or whether Microsoft will comply with the demands. Instead, it’s all about perception. If you haven’t done anything wrong, you might not have anything to worry about, but there’s a sense that Microsoft is doing something behind the scenes with our most sensitive data without our knowledge.
It was the exact same issue with Apple. There’s a perception that the FBI can demand a backdoor for which Apple would then have to comply, and that the hack could potentially fall into the wrong hands, even if that’s not necessarily possible. As Tim Cook, the CEO of Apple, stated repeatedly, the issue was not about helping in an investigation, it was creating new software to break the encryption on one phone that sets a precedence for other cases. Indeed, there is now a case in New York City that involves another locked phone used in a drug-related case.
Tech companies are obviously crying foul. We normally think of free speech as it relates to the media or expressing a political opinion, but it also applies to software. The suit is an attempt to restore trust -- that Microsoft will comply with requests, but after a period of time, will eventually inform customers that there is an investigation.
The suit, filed today in Seattle, is directly related to the Electronic Communications Privacy Act (ECPA) of 1986. Microsoft says gag orders for investigations are on the rise. According to Reuters, tech companies won a battle two years ago that gave them the right to disclose how many court orders they receive related to investigations. (Microsoft received 5,624 demands in the last 18 months, of which 2,600 included a gag order.) The suit follows approval this week to change the Email Privacy Act portion of the ECPA to force investigators to issue a warrant.
As is usually the case, these encryption battles come in waves. Apple fought the first tsunami; now Microsoft is taking up the baton.
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