Microsoft Corp is suing the US government over a federal law that lets authorities examine its users’ e-mail or online files without their knowledge.
It is the latest conflict between the technology industry and US officials over individual privacy rights. Law enforcement officials want freedom to view a treasure trove of information — including e-mails, photographs and financial records — that customers are storing on electronic gadgets and in cloud computing centers.
Microsoft says the US Department of Justice is abusing the 1986 Electronic Communications Privacy Act, which allows authorities to obtain court orders requiring it to turn over customer files stored on its servers, while in some cases prohibiting the company from notifying the customer.
Microsoft claims these “non-disclosure” orders violate its constitutional right to free speech, as well as its customers’ protection against unreasonable searches.
A US Department of Justice spokeswoman said the government is reviewing the lawsuit, which was filed on Thursday in a Seattle federal court.
One former federal official was critical of Microsoft’s position, saying it could lead to warning “child molesters, domestic abusers, violent criminals and terrorists that they’re being investigated.”
The non-disclosure orders must be granted by a judge who has concluded that “notifying these individuals will have an adverse result, which could include messing up an investigation or even endangering the life or safety of individuals,” said Daniel Rosenthal, a former US National Security Council and Department of Justice attorney.
However, Microsoft argues the law sets a vague standard for granting secrecy around digital searches. Authorities are required to disclose most search warrants for information stored in filing cabinets, safes or other physical locations, the company said in its court filing.
“At the end of the day, when you are being investigated by the government, you should know about the investigation so you can prepare a defense,” said Mark Jaycox of the Electronic Frontier Foundation, a digital rights group.
Microsoft said government demands under the act are increasing in number for a variety of investigations, including white-collar cases.
“We appreciate that there are times when secrecy around a government warrant is needed, 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,” Microsoft president Brad Smith said in a statement.
The Redmond, Washington-based company says authorities used the law to demand customer information more than 5,600 times in the past 18 months. In nearly half those cases, a court ordered the company to keep the demand secret.
Although some orders expired after a period of time, Microsoft said the gag orders were indefinite in about 1,750 cases, “meaning that Microsoft could forever be barred from telling the affected customer about the government’s intrusion.”
As more people store data online, Microsoft argued in its lawsuit that the government is exploiting that trend “as a means of expanding its power to conduct secret investigations.”
In an interview, Smith said the company decided to sue the US Department of Justice after a case where authorities threatened to hold Microsoft in contempt when it sought to contest a particular secrecy order.
“That caused us to step back and take a look at what was going on more broadly,” Smith said. “We were very disconcerted when we added up the large number of secrecy orders we’ve been receiving.”
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