Privacy Law

Justice Department limits use of secrecy orders when accessing digital data

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Microsoft is taking steps to dismiss a lawsuit challenging the government’s routine use of secrecy orders when accessing digital data after the Department of Justice agreed to change its practices.

Microsoft announced the development in a press release that called the government’s new policy “a significant milestone in Microsoft’s fight for their customers’ rights.” The Washington Post, CNet, GeekWire and Reuters covered the development.

Brad Smith, Microsoft’s president and chief legal officer, said in a blog post that the new policy “helps ensure that secrecy orders are used only when necessary and for defined periods of time.”

The Microsoft lawsuit, filed in April 2016, said federal courts had issued about 2,600 orders in the last 18 months that barred Microsoft from revealing government access to data. More than two-thirds had no fixed end date. The suit said customers had a Fourth Amendment right to know when the government gets their email or documents, and Microsoft had a First Amendment right to communicate with its customers.

Deputy Attorney General Rod Rosenstein unveiled the policy in a memo to U.S. attorneys. The memo (PDF) said secrecy orders obtained under the Stored Communications Act “should have an appropriate factual basis” and “should extend only as long as necessary to satisfy the government’s interest.” Barring exceptional circumstances, prosecutors seeking secrecy orders should seek a time limit of a year or less, the policy says.

Microsoft is calling on Congress to pass legislation that would limit secrecy orders to 90 days, unless the government seeks renewal, according to the Post coverage. The bill would amend the Electronic Communications Privacy Act.

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