Microsoft Scores Victory In Customer Privacy Fight After DOJ Drops Gag Order Policy

Thanks in part to Microsoft, the Department of Justice has issued a new policy that limits how and when prosecutors may use gag orders to prevent technology firms from informing customers government agencies are access their cloud data, including emails. The new policy requires that secrecy orders "have an appropriate factual basis" and last long enough to "satisfy the government's request" rather than indefinitely.

The decision to implement the new policy is a result of a lawsuit filed by Microsoft against the DoJ in April 2016. In its lawsuit, Microsoft brought up the fact that the US government legally silenced the company 2,576 times in 18 months, effectively preventing it from speaking with customers about warrants and other legal processes seeking their data. More than two-thirds of those gag orders contained no fixed end date.

Image Source: Wikimedia Commons (Ben Franske)

"Until now, the government routinely sought and obtained orders requiring email providers to not tell our customers when the government takes their personal email or records. Sometimes these orders don’t include a fixed end date, effectively prohibiting us forever from telling our customers that the government has obtained their data," Microsoft said.

"As we said when we filed the lawsuit, we believe customers have a constitutional right to know when the government gets their email or documents, and we have a right to tell them. These are important principles established by both the Fourth and First Amendments to the US Constitution," Microsoft added.

The gag order was previously enforceable under the 1986 Electronic Communication Privacy Act, which was enacted several years before the Internet became a household service. With the new rules in place, Microsoft has dropped its lawsuit, though it says more changes are needed and is now urging Congress to amend the decades old ECPA containing many outdated provisions.

"As we’ve advocated in our other cases, we hope Congress will make this positive step forward more permanent by updating outdated laws to better protect our digital rights while still enabling law enforcement to do its job," Microsoft added.