Microsoft vows to keep fighting gag orders on U.S. government surveillance of customers despite legal setback

For years, Microsoft has been going to bat with the government over gag orders that prevent the cloud provider from notifying customers when law enforcement seizes their data. Despite a legal setback revealed Wednesday, Microsoft says it won’t let up.

In a new blog post, General Counsel Dev Stahlkopf vowed to continue fighting to notify one of Microsoft’s large enterprise customers about a warrant issued by a federal judge in New York. The warrant instructs Microsoft to turn over “emails, text messages and voicemails” — along with other data — that belong to the customer but are stored on Microsoft servers, according to the complaint, which was unsealed Wednesday.

Microsoft filed a lawsuit over the warrant in 2018, claiming the secrecy order preventing the company from notifying its customer was too broad.

“We argued to the court that there must be an executive or representative of the company (our customer) — which has thousands of employees — who can be notified of the warrant’s existence, without jeopardizing the federal law enforcement investigation,” Stahlkopf wrote in the blog post.

A lower court denied Microsoft’s challenge. The company is appealing the order and plans to escalate the issue to higher courts if necessary.

Microsoft believes that its cloud customers have a right to know when their information is seized by the government, just as they would if law enforcement officials served a warrant on their homes.

“We believe strongly that these fundamental protections should not disappear just because customers store their data in the cloud rather than in file cabinets or desk drawer,” Stahlkopf said in the blog post.

The complaint does not identify the customer at the center of the dispute. It does say that the government claims the account holders committed wire fraud, money laundering, and conspiracy with another multinational corporation to send U.S. goods to “[a company] in [a foreign country], in contravention of U.S. sanctions.”

Microsoft has sued the government over these types of gag orders several times. Its most high-profile lawsuit was filed in 2016 in U.S. District Court in Seattle. Microsoft asked a federal judge to declare unconstitutional the provision of federal law allowing the secrecy orders.

In 2017, Microsoft dropped the case after the Justice Department’s announced a new binding policy requiring prosecutors to “conduct an individualized and meaningful assessment regarding the need for protection from disclosure” prior to seeking a gag order and to “only seek an order when circumstances require.”

Despite that policy, Microsoft still believes “there are times when those orders go too far,” according to Stahlkopf.

“In those cases, we will litigate to protect our customers’ rights,” he said.