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Published: Wed, October 25, 2017
Research | By Jennifer Evans

Microsoft drops gag order lawsuit against DoJ

Microsoft drops gag order lawsuit against DoJ

The gag orders prevent Microsoft and other companies from alerting users when the companies receive government requests for their data, which Microsoft argued was a violation of its rights to free speech.

Under the new policy, issued by the DoJ's deputy attorney general last week, each secrecy order "should have an appropriate factual basis" and only last "as long as necessary to satisfy the government's request".

"This new policy limits the overused practice of requiring providers to stay silent when the government accesses personal data stored in the cloud". As you might expect, Microsoft is considering this a win for its legal team: "This is an important step for both privacy and free expression".

It's been more than a year since Microsoft sued the government (with backing from Amazon, Apple, Google and many others) over the right to tell its customers when the authorities ask it to hand over data, and now the DoJ has responded with a new policy.

In the 18 months before Microsoft sued in April 2016 in Seattle, the company said 2,756 of the legal demands it received from the US government came with secrecy orders and two-thirds appeared to extend indefinitely.

KitGuru Says: Microsoft isn't the only major tech company that has been butting heads with the United States government in recent years.

Microsoft Corp., which sued the government over the practice previous year, and other internet giants have argued that the future of cloud computing is in jeopardy if customers can't trust that their data will remain private.

Section 2705 (b) sweeps too broadly.The statute sets no limits on the duration of secrecy orders, and it permits prior restraints any time a court has "reason to believe" adverse consequences would occur if the government were not allowed to operate in secret. Amicus briefs have been also filed by several us businesses.

The policy also ends the practice of issuing indefinite secrecy orders that lack an end date.

"As a result of the issuance of this policy, we are taking steps to dismiss our lawsuit", Smith said. "We will continue to turn to the courts if needed".

Despite the Justice Department's new approach to search requests, Microsoft called on Congress to change the law. He pushed Congress to pass the ECPA Modernization Act of 2017, which would prevent officials from sticking tech companies with anything longer than a 90-day gag order unless the government asks for a renewal. Those guidelines include notifying individuals sooner about their being subject to a search, and making "an individualized and meaningful assessment" to determine whether such a secret search order is warranted. It is time to update this outdated 1986 law that regulates government access to contemporary electronic communications.

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