One of the most troubling facts that came out of Edward Snowden's disclosures last year was the degree to which the government has relied on National Security Letters to compel companies to reveal information about their clients without producing a warrant. Many NSLs were accompanied by non-disclosure orders that forbade the receiving company from revealing to the accused that their information had been demanded. Microsoft
had previously gone to court over such tactics and today, the details of the company's strategic victory became public for the first time.
Last year, the FBI
demanded information on an unidentified Office 365 enterprise customer and included a non-disclosure requirement alongside the letter. Microsoft challenged the constitutionality of that agreement -- and the FBI, in response, dropped the request altogether. Microsoft is crowing over the FBI's decision to drop the request as a win, noting that it will continue to challenge such gag orders as contrary to the spirit of the First Amendment and harmful to Microsoft's attempt to establish trust with its customers.
Why The FBI Dropped The Order Rather Than Face A Court
Let me say, first of all, that I'm glad Microsoft was willing to stand up for its customers, We now know that multiple companies went to bat against the government over the past decade in an attempt to win the right to disclose when they received these NSLs and to protect the rights of their users. But with that said, I think a closer examination of why the FBI dropped this case is relevant.
The government has already lost one case; last year Judge Ilston ruled that the non-disclosure requirements of a National Security Letter were overbroad and impermissible given the protections guaranteed under the First Amendment. She agreed to suspend that ruling while the government appealed its case to the Ninth Circuit Court of Appeals -- and while this case would've been tried in the same circuit and therefore subject to the eventual ruling of the same court, two federal judges ruling against the government's behavior is the beginnings of a movement, whereas one judge's ruling can be dismissed as the personal opinion of a single individual.
The FBI, of course, explains the situation differently, and claims that it was able to retrieve the desired information through alternate channels. If that's actually true, it again raises the question of why these NSL's and their restrictive agreements are important to begin with. While they obviously make it easier
for the government to compel cooperation and gather data, the point of the criminal justice system is to safeguard the rights of the accused -- not to make the government's job as easy as possible.
It's important to remember that the ultimate power to reform these institutions lies in the hands of the citizenry, not in the hands of large corporations -- there's simply no guarantee that every company will take the stand that MS did, nor that Microsoft will pursue an appropriately aggressive policy in every applicable instance. Nonetheless, it'd be churlish to dismiss the company's actions as meaningless -- without the stance that Google
, Microsoft, and even Yahoo
have taken, we'd have even less visibility into the current environment.