Microsoft sues DOJ for right to tell customers about data searches

On Thursday Microsoft opened a lawsuit against the U.S. Department of Justice, arguing that the government can't prevent it from telling customers when federal agencies have searched through their data — or at least, not as frequently.

Of the 5,624 information requests received by Microsoft in the last 18 months, 2,576 came with gag orders preventing Microsoft from disclosing a search, the company said in a court filing seen by the Wall Street Journal. Of the latter, 1,752 had no expiry date, effectively keeping them secret forever.

At the moment, a gag order can be imposed when U.S. courts have "reason to believe" that alerting someone would risk an investigation. Microsoft's case argues that this barrier is too weak, and that as a result gags are requested and won too often, even if there is sometimes a legitimate need for them.

Regardless the company has a First Amendment right to tell people about searches as soon as secrecy isn't essential, the filing argued. It also pointed to Fourth Amendment guarantees that people should be notified when property is being searched.

Microsoft admitted some business interest in the case, suggesting that the government's tactics "undermine confidence in the privacy of the cloud and have impaired Microsoft's right to be transparent with its customers," particularly at the corporate level, where customers allegedly feel "very strongly" about the topic.

While Microsoft's lawsuit is independent, it could help other tech businesses like Apple, which have turned to marketing privacy as a feature — particularly after Edward Snowden's 2013 revelations about the extent of mass surveillance by the National Security Agency. Apple in particular has become the focal point of a debate about encryption and whether governments should legally be able to bypass it.