Microsoft tells U.S. government that 'gag orders' are unconstitutional

Microsoft files federal lawsuit to declare ECPA unconstitutional. Brad Smith issues a missive.

Microsoft US federal government

“There’s an opportunity for the Department of Justice to adopt a new policy that sets reasonable limitations on the use of these types of secrecy orders.”

Microsoft fights US federal government over countless secret demands for customer data. Redmond alleges the DoJ and AG is in violation of the First and Fourth Amendments to the Constitution (tl;dr the law is an ass).

This to-do is all to do with something called the Electronic Communications Privacy Act (ECPA) -- from waaay back in 1986, when your humble blogwatcher was listening to Depeche Mode and flaming people on Usenet. This pre-Web law allows judges to order indefinite secrecy, given criteria that aren't exactly terrifically well defined, argues Microsoft.

So Microsoft is taking it to federal court. If this sounds to you like the nuclear option, well you might be right. In IT Blogwatch, bloggers duck and cover.

Your humble blogwatcher curated these bloggy bits for your entertainment. Not to mention: China doesn't exist

What’s the craic? Jay Greene, Devlin Barrett, Robert McMillan and Jack Nicas tag-team to report Microsoft Sues Justice Department:

The suit...raises a fundamental question of how...secretly, the government should be able to gain the cloud-computing era. [It's] another high-profile confrontation between the government and a tech giant. ... While seen as a standard-bearer for...civil liberties, Microsoft, too, has been outspoken.

Microsoft received 5,624 federal the past 18 months. ... Microsoft’s filing zeroes in on [the ECPA], written in 1986. ... Some law-enforcement officials have urged Congress to move more quickly and update laws [but] there appears to be little appetite in Congress to take action this year.

On what basis? Shaun Nichols sounds sheepish—Mad Nad and bad-ass Brad slam Sam in court thwart:

Microsoft wants to warn people when their...files and messages have been requested...but the biz is often hit by gag orders. [It] alleges that the DoJ is infringing [the] First and Fourth Amendment.

Redmond chief legal counsel Brad Smith announced...Microsoft will seek a legal declaration. ... Microsoft is seeking a court declaration that...section 2703(b) of the US Code [is] unconstitutional.

Who is the horse's mouth? Microsoft CLO Brad Smith says it's An issue for both consumers and businesses:

We filed [the] stand up for...our customers’ constitutional and fundamental rights. ... Consumers and businesses have a right to know when the government accesses their...records.

There are times when secrecy around a government warrant is needed. [But] the issuance of secrecy orders has become too routine. ... Over the past 18 months, the U.S. government has required...secrecy regarding 2,576 legal demands. ... 68 percent of the total contained no...end date. ... Lengthy [or] permanent secrecy orders violate the Fourth Amendment. ... They also violate the First Amendment.

But we believe it’s important to...think constructively. ... There’s an opportunity for the [DoJ] to adopt a new policy. ... Congress also has a role to play.

Cue the inevitable comparisons with Apple. Paul Thurrott puts it strongly—Microsoft Sues the U.S. Government:

While Apple has belatedly...entered the fight against...government intrusion...Microsoft has in fact been pushing back for years. But...rather than [a] case in which it is clearly in the wrong, Microsoft is...challenging the legal process [and] says this is an issue of fundamental rights.

Microsoft believes these actions violate two fundamental rights:..people and businesses [have] the right to know if the government searches or seizes their property, and...Microsoft [has the] right to talk to its customers about...government action.

Microsoft isn’t just in the right, but it also has the moral authority. ... It’s a good fight that we should all support.

So hurrah for Microsoft, then? Uh, no, not according to Npco543:

The US is...somewhere between a corporatocracy and an oligarchy. ... The US government and US corporations are fully in bed.

Remember, this type of thing has been going on for more than a decade. ... Had it not been for Edward Snowden spilling the beans, Microsoft...would have continued to be more than happy. ... It’s only since it became public [that] any of these corporations grown a backbone.

Their concern has nothing to do with...the constitution, their concern is...their bottom line. ... I’m not so naive to think it’s being done on my behalf. ... Corporations are not your friends.

This is huge. So says Molly Wood:

And you thought Apple v Justice Dept. was big.

And Finally…

Some bloke tries to convince you that China doesn't exist

You have been reading IT Blogwatch by Richi Jennings, who curates the best bloggy bits, finest forums, and weirdest websites… so you don’t have to. Catch the key commentary from around the Web every morning. Hatemail may be directed to @RiCHi or
Opinions expressed may not represent those of Computerworld. Ask your doctor before reading. Your mileage may vary. E&OE.

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