NEW YORK — Microsoft filed a landmark lawsuit against the U.S. Department of Justice on Thursday, taking a stand against the way federal agents routinely search its customers’ personal information in secret.
The company accuses the federal government of adopting a widespread, unconstitutional policy of looking through Microsoft customers’ data — and forcing the company to keep quiet about it, sometimes forever.
Over the past 18 months, federal judges have approved 2,600 secret searches of Microsoft customers, according to the company. And in two-thirds of those cases, Microsoft can’t even notify their customers that they’ve been searched — ever — because there’s no expiration date on these judicial orders.
“Microsoft brings this case because its customers have a right to know when the government obtains a warrant to read their emails, and because Microsoft has a right to tell them,” the lawsuit states.
At issue here is the 1986 Electronic Communications Privacy Act, which creates a double standard when it comes to a person’s right to know when police are rummaging through their stuff.
Normally, a person must be told when police — with a search warrant — search their home to look for clues to a crime.
Nowadays, people keep lots of email, notes, contact lists, and pictures on computer servers at Microsoft and elsewhere. Under this 1986 law, police can get a special exemption to search those computers and keep the company from informing its customers when law enforcement has ordered a search.
“People do not give up their rights when they move their private information from physical storage to the cloud,” Microsoft says in its lawsuit. “The government, however, has exploited the transition to cloud computing as a means of expanding its power to conduct secret investigations.”
The Department of Justice did not provide immediate comment.
Federal agents appreciate the secrecy of these searches, because it doesn’t tip off a person when they’re under investigation. However, as Microsoft notes in its lawsuit, these searches remain undisclosed even after cases are closed.
Microsoft has taken stands over customer privacy in the past. Microsoft is currently fighting the DOJ, saying it doesn’t have to hand customer information it stores in Ireland over to American law enforcement agents unless Ireland gives the okay.
But this lawsuit is different, because it confronts the secretive tactics adopted by U.S. law enforcement in recent years. In 2014, Yahoo beat the federal government in court, allowing companies to publicize mass government data collection. This year, Apple fought off the FBI’s attempts to force it to unlock a terrorist’s iPhone.