USA: Microsoft drops lawsuit against Federal Govt. after Department of Justice limits use of secret data requests



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23 October 2017

DOJ acts to curb the overuse of secrecy orders. Now it’s Congress’ turn.

Author: Brad Smith, Microsoft President & Chief Legal Officer, on Microsoft Blog

In response to concerns that Microsoft raised in a lawsuit we brought against the U.S. government in April 2016, and after months advocating for the United States Department of Justice to change its practices, the Department of Justice (DOJ) today established a new policy to address these issues. This new policy limits the overused practice of requiring providers to stay silent when the government accesses personal data stored in the cloud. It helps ensure that secrecy orders are used only when necessary and for defined periods of time. This is an important step for both privacy and free expression. It is an unequivocal win for our customers, and we’re pleased the DOJ has taken these steps to protect the constitutional rights of all Americans.

...We understand there are instances in which the government might need a secrecy order for legitimate reasons...But our lawsuit was based on a growing and disturbing trend. We highlighted the fact that the government appeared to be overusing secrecy orders in a routine fashion... and were seeking indefinite secrecy orders in a large number of cases...

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23 October 2017

Microsoft drops suit over Justice Dept.'s secret data requests

Author: Steven Musil, CNET (USA)

Microsoft said Monday it will drop its lawsuit against the US Justice Department after the agency moved to scale back the use of gag orders.

The software maker last year sued the Justice Department over a key legal tool used by the US government, which forces companies to turn over data about their customers but bars them from alerting the people being investigated.

...Microsoft's dropping of the lawsuit comes in response to new guidelines quietly issued last week by the Justice Department that end routine use of such orders in demands for customer data. 

...In April 2016, Microsoft asked a federal court in Seattle to strike down portions of the Electronic Communications Privacy Act, arguing that the 1986 law violated customers' Fourth Amendment protections because the government wasn't required to notify them when their records were obtained.

Microsoft also argued that the practice of using gag orders had become too common. In the 18 months before it filed its challenge, Microsoft said it had been forced to maintain secrecy in 2,576 cases -- two-thirds of which carried permanent gag orders.

Despite the Justice Department's new approach to search requests, Microsoft called on Congress to change the law. 

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19 October 2017

Policy Regarding Applications for Protective Orders Pursuant to 18 U.S.C. 2705(b)

Author: Rod J. Rosenstein, Deputy Attorney General, US Department of Justice

This memorandum provides guidance and direction for Department of Justice attorneys and agents seeking protective orders pursuant to 1 8 U.S.C. 2705(b) of the Stored
Communications Act (SCA). This guidance applies prospectively to all applications seeking protective orders, including both new orders and renewals, filed on or after 30 days of the date this memorandum is issued.

...Each SS 2705(b) order should have an appropriate factual basis and each order should extend only as long as necessary to satisfy the government's interest. Prosecutors who are applying for 2705(b) orders must follow the steps outlined below:

1.     Prosecutors must conduct an individualized and meaningful assessment regarding the need for protection from disclosure prior to seeking an 2705(b) order and only seek an order when circumstances require.

...4. Barring exceptional circumstances, prosecutors filing SS 2705(b) applications may only seek to delay notice for one year or less.

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