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Microsoft's chief legal officer explains the company's suit against the U.S. Justice Department

Earlier today, news about Microsoft filing a new suit against the US Justice Department surfaced online. Thanks to an early report from GeekWire, we were able to deduce the initial details of the suit as being relatively straightforward.

In its complaint, Microsoft asserts that it no longer sees Section 2705(b) of the Electronic Communications Privacy Act as constitutional. Previously, the US government could lean on the ECPA as a way to obtain secrecy orders preventing companies such as Microsoft from informing its customers to the targeting of their data by the government.

In recent years, Microsoft has been more vocal about the protection of its customer’s data and how the US government (in particular) is enacting laws for technology that are simply outdated and thus dangerously crossing conceptual and actual lines of individual privacy and rights. Less than 12 hours after Microsoft filed its suit against the US Justice Department, GeekWire was able to sit down with the company’s president and chief legal officer and sort out what prompted the push to overturn a standing US provision for ‘modern’ investigation.

When asked about what prompted Microsoft into action against Section 2705(b), Brad Smith, chief legal lamented on the notion that government is rubber stamping request so often it’s beginning to encroach on the users rights.

I think it was even more striking to see that 68% of the secrecy orders had no time limit at all. We concluded that we were facing a recurring issue that increasingly is raising fundamental rights for our customers. On that basis, we concluded that we really did need to take this issue to the courts.”

Filing the suit is one thing, but actually getting the ECPA overturned or amended is another issues altogether, something about which Smith seems cautiously optimistic.

I think we have a very strong argument. It’s always important to bring the right case on the right facts and for the right reasons. I think this is the right case. These are two fundamental constitutional rights in this country, under the 4th Amendment and the 1st Amendment. I think we’ve got very strong facts.”

The interviewer prods at the prospect of other companies coming to Microsoft’s defense similar to the reception that Apple recently received with its own battle with the US government over the high profiled San Bernardino iPhone case. With less than 24 hours under its belt, Microsoft’s suit only has potential companies in the explorative and conversational phase or support it seems.

Lastly, the interview touches on just how shocking the government’s secrecy orders can be at times.

First, I think that people probably should be surprised that the government is now so routinely seeking secrecy orders that have no end date at all. I don’t know that people have thought about this deeply in the past, but the practice in this country is that secrecy’s been the exception, not the norm. It required a standard of proof by the government, and it was understood to last for only as long as needed. When you get over 1,700 secrecy orders that are permanent, it really means that they will last forever.”

It will be interesting to see how the government proceeds and what type of media coverage this case receives, as it’s a much broader fight for individual rights.

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