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Microsoft Ends ‘Gag Order’ Lawsuit Against US Government

Matt Broersma is a long standing tech freelance, who has worked for Ziff-Davis, ZDnet and other leading publications

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Microsoft said the US Department of Justice has changed its policy in the use of data search warrants accompanied gag orders, ending the need for the case

Microsoft is to wind down a legal case against the US Department of Justice (DOJ) over officials’ routine use of gag orders with no expiry dates, after a policy shift the firm said it believes will end the practice.

fbi2The software company filed the lawsuit in April 2016 arguing the US government violated the US constitution in the way it was using gag orders to prevent companies from disclosing authorities’ requests to access users’ emails or other information.

The orders violated the constitution’s First Amendment right to freedom of speech and the Fourth Amendment, which establishes the right to know about government searches and seizures, Microsoft argued.

In one 18-month period the government served Microsoft with 2,576 gag orders, just over two-thirds of which had no specified end date, Microsoft said.

New policy

But in a memo issued to DOJ attorneys and agents last week, Deputy Attorney General Rod Rosenstein said search orders should include a gag only when there is a true “need for protection from disclosure”, with a time limit that’s no longer than necessary.

Microsoft chief legal officer Brad Smith said this week Microsoft believes the change means the number of gag orders should be reduced and should”end the practice of indefinite secrecy orders”, while making sure that “every application for a secrecy order is carefully and specifically tailored to the facts in the case”.

“As a result of the issuance of this policy, we are taking steps to dismiss our lawsuit,” Smith said in a blog post.

The DOJ’s policy was its interpretation of the Electronic Communications Privacy Act (ECPA) of 1986, intended to extend wiretap laws into the computer age, and Microsoft said it would continue its efforts to have the ECPA revised, calling the law “outdated”.

The case is distinct from Microsoft’s ongoing dispute with authorities over a request for emails stored in a Microsoft data centre in Dublin, Ireland.

A lower court had prevented prosecutors from accessing the information in a drugs trafficking investigation, but the government appealed on the grounds of national security and public safety, and last week the US Supreme Court agreed to hear the appeal.

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