Matt LaWell, IndustryWeek
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DoJ: Microsoft Can’t Shield User Data From Government

July 25, 2016
In the latest development of an ongoing, years-old story, the federal government says that, by law, it can obtain electronic communications without a warrant or without disclosure of a specific warrant if it would endanger an individual or an investigation.

The U.S. says there’s no legal basis for the government to be required to tell Microsoft Corp. customers when it intercepts their e-mail.

The software giant’s lawsuit alleging that customers have a constitutional right to know if the government has searched or seized their property should be thrown out, the government said in a court filing. The U.S. said federal law allows it to obtain electronic communications without a warrant or without disclosure of a specific warrant if it would endanger an individual or an investigation.

Microsoft sued the Justice Department and Attorney General Loretta Lynch in April, escalating a feud with the U.S. over customer privacy and its ability to disclose what it’s asked to turn over to investigators. Last week, Microsoft persuaded an appeals court to overturn an order to turn over e-mails stored on servers in Ireland as part of a Manhattan drug prosecution.

The Justice Department’s reply Friday underscores the government’s willingness to fight back against tech companies it sees obstructing national security and law enforcement investigations. Tensions remain high following a series of court confrontations between the FBI and Apple Inc. over whether the company could be compelled to help unlock iPhones in criminal probes, including a phone used by one of the attackers in last December’s terrorist attack in San Bernardino, California.

The industry’s push against government intrusion into their customers’ private information began at least two years ago, in the wake of Edward Snowden’s disclosures about covert data collection that put them all on the defensive.

Microsoft and Apple argue the very future of mobile and cloud computing is at stake if customers can’t trust that their data will remain private, while investigators seek digital tools to help them fight increasingly sophisticated criminals and terrorists savvy at using technology to communicate and hide their tracks.

Kathy Roeder, a spokeswoman for Microsoft, didn’t immediately respond to an e-mail after regular business hours Friday seeking comment on the filing.

“Microsoft’s challenge effectively asks this court to adjudicate the lawfulness of thousands of such court orders from across the U.S., without regard to the basis for, and terms of, those orders, which necessarily vary from case to case,” the Justice Department said in Friday’s court filing.

The government said Microsoft doesn’t have the authority to sue over whether its users’ constitutional protections against unlawful search and seizure are being violated, the U.S. said.

Secrecy orders on government warrants for access to private e-mail accounts generally prohibit Microsoft from telling customers about the requests for lengthy or even unlimited periods, the company said when it sued. At the time, federal courts had issued almost 2,600 secrecy orders to Microsoft alone, and more than two-thirds had no fixed end date, cases the company can never tell customers about, even after an investigation is completed.

Microsoft conceded that there may be times when the government is justified in seeking a gag order to prevent customers under investigation from tampering with evidence or harming another person. Still, the Redmond, Washington-based company says the statute authorizing the gag orders is too broad and sets too low of a standard for secrecy.

The case is Microsoft Corp. v. U.S. Department of Justice, 16-cv-00538, U.S. District Court, Western District of Washington (Seattle).

By Kartikay Mehrotra, with assistance from Dina Bass

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