The battle between the federal government and private companies' actions to protect customer data is re-entering the courts. Microsoft filed a lawsuit Thursday against the Justice Department arguing the government's requests to access consumer data, and the secrecy surrounding those requests, are unconstitutional.
Here are eight things to know about the lawsuit.
1. Microsoft's lawsuit challenges the constitutionality of part of the Electronic Communications Privacy Act, which says courts can require companies to not disclose to customers that the government has obtained a warrant to access and search their information. Such court-ordered gag orders can be based on the government's "reason to believe" that informing the public would alter the course of an investigation, which Microsoft says is not reason enough.
"Nothing in the statute requires that the 'reason to believe' be grounded in the facts of the particular investigation, and the statute contains no limit on the length of time such secrecy orders may be kept in place," according to the lawsuit.
2. Microsoft contends the gag orders violate the First and Fourth Amendments. In the lawsuit, the tech company says these secret search warrants violate Americans' protections against unreasonable searches and seizures, and the gag order limit Microsoft's First Amendment rights to communicate with customers and discuss government investigations.
3. In the past year and a half, federal courts issued 5,624 demands to Microsoft for customer information or data. Nearly 2,600 of those included secrecy orders prohibiting Microsoft from telling customers about warrants and other legal processes to access customer data, according to the lawsuit. Additionally, 1,752 of the secrecy orders had no time limit, meaning Microsoft could potentially never be permitted to tell customers of the government's access.
Microsoft alleges the government issues warrants for electronic communication information "far more frequently" than it did for physical documents and communication.
4. The tech company alleges the government is taking advantage of the shift to cloud computing, using the digitization of customer information as a veil of privacy when seeking access to data. Before digitization, government officials would deliver notices directly to customers when seeking information. Microsoft argues just because people and businesses now store data in the cloud which can be accessible from anywhere, the government cannot access that data without prior notification.
"The government…has exploited the transition to cloud computing as a means of expanding its power to conduct secret investigations," according to the lawsuit. "As individuals and businesses have moved their most sensitive information to the cloud, the government has increasingly adopted the tactic of obtaining the private digital documents of cloud customers not from customers themselves, but through legal process directed at online cloud providers like Microsoft."
Microsoft's lawsuit says this combination of the government issuing more demands to access online data and the heightened levels of secrecy around those demands undermines the company's right to be transparent with customers.
5. The lawsuit from Microsoft follows a court battle between Apple and the FBI over the government's right to request — and the tech company's requirement to comply with — orders to unlock an individual's iPhone. The difference, though, is that Apple's lawsuit is centered on a single case that could set a precedent, while the Microsoft case directly challenges the legal process, according to The New York Times.
6. Other tech companies have voiced support for Microsoft, reports The Wall Street Journal, including online storage company Box. "We fully support Microsoft's effort to require more transparency in government data requests and the government's full observance of the protections guaranteed by the First and Fourth Amendments," Box stated, according to WSJ.
7. DOJ spokeswoman Emily Pierce told NYT officials are reviewing the lawsuit.
8. The lawsuit was filed in the United States District Court in Seattle, where Microsoft is headquartered.
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