In the turnabout is fair play department, Microsoft is now suing the Department of Justice. Turns out that over the last 18 months, Microsoft has received about 5 orders a day for customer information which do not allow Microsoft to tell the customer that the government filched their data. For the majority of them, that order is forever.
Microsoft thinks that is highly overplayed – that in many cases there is no reasonable need for long term security.
And, of course, it hurts Microsoft’s business. If people think that if they store their data in Microsoft’s cloud that the government can grab their data – in many cases without even needing a warrant – they may be reluctant to use Microsoft’s services.
Some of you amateur cyber law geeks may remember ECPA – The Electronic Communications (non) Privacy Act. Back in the 1980s when it was written, no one left stuff in the cloud. After all, that would be really stupid. So, as a result and for some bizarre logic that is only clear to Congress, ECPA says that if you store an email in the cloud for more than 180 days, they consider it unimportant or abandoned, so if law enforcement wants to see it, all they have to do is ask. No need for a warrant.
Congress has toyed with fixing this bit of stupidity, but has never actually gotten around to it. They are talking about fixing it again this year. One likely reason Congress has not changed the law is that the prosecutors like the status quo and have no interest in seeing the law changed.
If that same email is stored, instead, on your own server or on your PC, – same age, same content – then a prosecutor has to go before a judge and convince the judge to issue a warrant. Then they have to present that warrant to you and you can choose to fight it.
If that email is stored in Google’s cloud or Microsoft’s cloud, then all that same prosecutor has to do is ask Microsoft or Google for a copy of it.
Needless to see, Microsoft likely thinks that this could have a negative impact on selling their services, hence the lawsuit.
This is especially a problem for non U.S. customers who might not be thrilled with American law enforcement rifling through their stuff.
This suit was just filed in the Western District of Washington. Unless the government blinks, this could make it up to the Supreme Court – minus one justice Stay tuned for details.
Information for this post came from Microsoft’s Blog.