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Microsoft follows Apple, sues federal government

Microsoft says that the government has issued more than 2,000 secret warrants for information seizure. The company claims that this is a violation of First and Fourth Amendment Constitutional rights for consumers. 

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Microsoft chief executive Satya Nadella delivers the keynote address during the Microsoft Build 2016 Developer Conference in San Francisco in March. Microsoft Corp has sued the US government for the right to tell its customers when a federal agency is looking at their e-mails.

Beck Diefenbach/Reuters

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In the latest in the privacy vs. security debate, tech giant Microsoft is suing the federal government over the right to tell customers that the government is accessing their information.

Microsoft alleges that the government has secretly been accessing customer e-mails and other data, while preventing Microsoft from notifying customers that their information is being accessed.

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"People do not give up their rights when they move their private information from physical storage to the cloud," reads the lawsuit. The government "has exploited the transition to cloud computing as a means of expanding its power to conduct secret investigations."

Over the past 18 months, the federal government has used the Electronic Communications Privacy Act (ECPA) to order Microsoft to secretly disclose customer data. Microsoft has received 2,576 of these requests. 

Many of these secrecy orders came with no expiration date, meaning that Microsoft can never tell customers that their information has been seized.

Microsoft filed the lawsuit on Thursday in a federal court in Seattle. In the lawsuit, Microsoft alleges that the government is violating the Constitutional Fourth Amendment right to know when the government is participating in search and seizure of property, and the First Amendment right to free speech.

Though the government has warrants for the information it seeks, Microsoft says that it is unconstitutional to seize said information from Microsoft's cloud data storage without notifying the information's owners.

In February, fellow tech giant Apple made continuous national news for its refusal to comply with the Department of Justice's demand that it decrypt the iPhone of Syed Rizwan Farook, the shooter in San Bernardino, Calif., who had killed 14 and wounded 22 others in a terrorist attack on Dec. 2, 2015.

Previous reporting by The Christian Science Monitor's Passcode group discusses the importance of Apple's February fight

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"Today's battle is not about San Bernardino," said Sascha Meinrath, director of tech think tank X-Lab, "it’s about the integrity of our information and communications and our fundamental right to privacy."

The Monitor also compiled commentary by many companies and consumer privacy and security advocates who agreed that Apple was doing the right thing by refusing to buckle to government decryption demands.

Microsoft's chief legal officer Brad Smith acknowledged the similarity between Apple's fight and Microsoft's coming privacy battle.

"Just as Apple was the company in the last case and we stood with Apple," Mr. Smith told Reuters, "we expect other tech companies to stand with us."

Some say that Microsoft's recent emphasis on privacy is opportunistic. Just last year, Microsoft was chastised for not revealing to customers that their e-mails had been hacked by China.

Terry Cunningham, president of the International Association of Chiefs of Police, told The Wall Street Journal that vocally protecting consumer privacy is a positive business decision for tech companies, but less friendly toward law enforcement agencies working to solve crimes. He says that prior to 2014, companies were quiet about consumer privacy.

Apple was able to ride out the decryption fight. The government eventually hired a private team of decryption experts to crack the phone.

Does Microsoft have a chance of winning its own legal struggle?

It is too early to tell. There are, however, signs that Microsoft could be successful. Just one day before Microsoft filed its lawsuit, a congressional panel voted to reform the ECPA.

And as critics suggest, supporting customer privacy is a good business decision in today's tech-driven climate. Whether or not Microsoft wins this lawsuit, the flood of support for Apple two months ago suggests that Microsoft's decision to sue is, if not good legal sense, good business sense.