March 21, 2018

Microsoft Is Pulling 'Gag Order' Suit After DOJ Changes Policy

25 October 2017, 01:05 | Francis Delgado

Microsoft drops lawsuit after DOJ limits use of gag orders when accessing customer data

Microsoft drops suit over Justice Dept.'s secret data requests

Microsoft Corp said it will drop a lawsuit against the USA government after the Department of Justice (DOJ) changed data request rules on alerting internet users about agencies accessing their information.

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". Gag orders have typically been used to keep data providers like Microsoft silent, and not inform customers when their cloud data has been searched or inspected by authorities. "These are important principles established by both the Fourth and First Amendments to the U.S. Constitution".

As a result Microsoft says it will move to dismiss a lawsuit it filed against the DoJ past year.

The company expects the changes to end the practice of indefinite secrecy orders.

The Department of Justice has recently changed its own policy, saying it would now halt the standard never-ending gag orders that companies are faced with when they receive legal demands to hand over user data.

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"Our lawsuit challenging the government's use of secrecy upholds our commitment to challenge overbroad secrecy orders and is the fourth public one we've filed against the United States government related to our customers' right to privacy and transparency", he said.

In a shift away from patent battles and anti-trust allegations, some of Microsoft's more recent high profile court cases have centered around how it engages with the USA government over the search and release of data collected by the software company. In total, almost 90 technology firms, media organizations, academics and former law-enforcement officials filed amicus briefs supporting the company's stance. For instance, gag orders are justified if disclosing the government's request for the data could risk or harm an individual. It could also include cases where disclosure would thwart the government's investigation, or lead to the destruction of evidence.

Microsoft believes that its concerns have largely been addressed by the new policy adopted by the DOJ, so it's now dismissing that lawsuit.

Commenting on the tweaks, Frank Jennings, a partner at law firm Wallace LLP, said it represented "a step in the right direction", but was only a "relatively minor" change in policy. "We will continue to turn to the courts if needed".

The policy also ends the practice of issuing indefinite secrecy orders that lack an end date. "It is time to update this outdated 1986 law that regulates government access to contemporary electronic communications", he wrote. Now this week, the lawsuit was dropped, after a new agreement was met.

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