Ap­ple, Google back Mi­crosoft over ‘sneak-and-peek’ searches

Mi­crosoft and its sup­port­ers ar­gue the very fu­ture of mo­bile and cloud com­put­ing is at stake if cus­tomers can’t trust that their data will re­main pri­vate

The Financial Express - - PANORAMA -

AP­PLE, GOOGLE and Ama­zon.com were among the tech lead­ers that ral­lied be­hind Mi­crosoft in its bat­tle to stop the US gov­ern­ment from con­duct­ing so­called sneak-and-peek searches of cus­tomer emails.

Mi­crosoft and its sup­port­ers ar­gue the very fu­ture of mo­bile and cloud com­put­ing is at stake if cus­tomers can’t trust that their data will re­main pri­vate. A group of 11 tech­nol­ogy fir ms in­clud­ing Google said Fri­day in its court fil­ing that the fed­eral law al­low­ing the searches goes “far be­yond any nec­es­sary lim­its” while in­fring­ing users’ fun­da­men­tal rights.

“The gov­ern­ment’s abil­ity to en­gage in sur­rep­ti­tious searches of homes and tan­gi­ble things is prac­ti­cally and legally lim­ited," the com­pa­nies said in the fil­ing. “But the act al­lows the gov­ern­ment to search personal data stored in the cloud with­out ever no­ti­fy­ing an ac­count owner that her data has been searched."

Delta Air Lines and BP Amer­ica along with the US Cham­ber of Com­merce and other busi­nesses also asked to join the case in sup­port of Mi­crosoft, say­ing the ben­e­fits of cloud com­put­ing won’t be re­alised if pri­vacy rights aren’t pro­tected against gov­ern­ment sur­veil­lance. Those com­pa­nies, some of which are Mi­crosoft cus­tomers, in­clude Eli Lilly & Co and Glax­oSmithK­line. Twit­ter also sought to join the fray.

The jus­tice depart­ment, at­tor­ney gen­eral Loretta Lynch and their back­ers, de­fend the searches, say­ing they need dig­i­tal tools to help fight in­creas­ingly so­phis­ti­cated crim­i­nals and ter­ror­ists who are savvy at us­ing tech­nol­ogy to com­mu­ni­cate and hide their tracks.

Mark Abueg, a jus­tice depart­ment spokesman, didn’t im­me­di­ately re­spond to a call seek­ing com­ment on the fil­ings sup­port­ing Mi­crosoft and whether the gov­ern­ment was ex­pect­ing any on its be­half.

The gov­ern­ment said in its re­sponse to the law­suit in July that Mi­crosoft doesn’t have the au­thor­ity to sue over whether its users’ con­sti­tu­tional pro­tec­tions against un­law­ful search and seizure are be­ing vi­o­lated. It ar­gues the com­pany has asked the court to rule on thou­sands of cases re­lated to the dis­pute with­out con­sid­er­ing the in­di­vid­ual ba­sis for each one.

End­point ‘un­clear’

Ap­ple said in its fil­ing that the fre­quency and vol­ume of the gov­ern­ment’s use of the gag orders are “vir­tu­ally un­lim­ited in prac­tice be­cause their end­point is un­clear.” In 2016, Ap­ple said it has re­ceived al­most 600 gag orders.

Fox News Net­work, the Associated Press and 27 other news or­gan­i­sa­tions asked in a sep­a­rate fil­ing Fri­day to join the case, say­ing re­straints on dis­clos­ing war­rants to email users vi­o­late free-speech rights.

The Amer­i­can Civil Lib­er­ties Union, along with pri­vacy groups such as the Elec­tronic Fron­tier Foun­da­tion, are also seek­ing to file so­called friend-of-the-court briefs in sup­port of Mi­crosoft.

“It’s not ev­ery day that Fox News and the ACLU are on the same side of an is­sue,” Brad Smith, Mi­crosoft’s chief le­gal of­fi­cer, said in an emailed state­ment. “We be­lieve the con­sti­tu­tional rights at stake in this case are of fun­da­men­tal im­por­tance, and peo­ple should know when the gov­ern­ment ac­cesses their emails un­less se­crecy is truly needed.”

Mi­crosoft has been fight­ing the US over cus­tomer pri­vacy and clan­des­tine dis­clo­sures to in­ves­ti­ga­tors for more than two years. In July, the soft­ware maker per­suaded an ap­peals court to over­turn an or­der to hand over emails stored on servers in Ire­land as part of a Man­hat­tan drug pros­e­cu­tion.

Gov­ern­ment war­rants

In the case be­fore a fed­eral judge in Seattle, Mi­crosoft calls the 1986 Elec­tronic Com­mu­ni­ca­tions Pri­vacy Act un­con­sti­tu­tional, cit­ing its own First Amend­ment free speech rights and its cus­tomers’ Fourth Amend­ment right to know whether the gov­ern­ment has searched or seized their prop­erty. Those very laws al­low the US to ob­tain elec­tronic com­mu­ni­ca­tions with a war­rant and se­crecy or­der if it would en­dan­ger their case or a per­son, the gover nment con­tends.

Global trust in US sur­veil­lance has waned since the dis­clo­sures of for­mer CIA em­ployee and se­cu­rity con­trac­tor Ed­ward Snow­den, to the point that com­pa­nies now have to make over­tures to con­sumers about their in­ter­est and abil­ity to keep con­tent se­cure, said Bloomberg In­tel­li­gence an­a­lyst Matt Lar­son.

“Mi­crosoft wants to be able able to tell its cus­tomers that these types of pro­ceed­ings are go­ing on to pro­tect their pri­vacy,” Lar­son said. “The end game for Mi­crosoft here is to at least have the DOJ re­visit its pro­ce­dures when pur­su­ing these war­rants.”

Mi­crosoft al­leges that in the 18 months lead­ing up to the April com­plaint, it re­ceived more than 5,600 fed­eral de­mands for cus­tomer data, about 2,600 of which were ac­com­pa­nied by se­crecy orders that pre­vent Mi­crosoft from dis­clos­ing searches to the af­fected cus­tomers.

Mi­crosoft’s sup­port­ers in­clude four for­mer US at­tor­neys in Wash­ing­ton state and a for­mer spe­cial agent in charge of the FBI’s Seattle of­fice. They con­tend that se­cret searches are un­con­sti­tu­tional be­cause “ob­tain­ing a war­rant, but not dis­clos­ing it, nul­li­fies an es­sen­tial func­tion of the war­rant, which is to pro­vide no­tice to the per­son who is the tar­get of the search.”

The case is Mi­crosoft Corp v US Depart­ment of Jus­tice, 16-cv-00538, US Dis­trict Court, Western Dis­trict of Wash­ing­ton (Seattle).

The Amer­i­can Civil Lib­er­ties Union, along with pri­vacy groups such as the Elec­tronic Fron­tier Foun­da­tion, is also seek­ing to file so-called friend-of-the-court briefs in sup­port of Mi­crosoft

BLOOMBERG

A group of 11 tech­nol­ogy firms said in a court fil­ing on Fri­day that the fed­eral law al­low­ing the searches goes “far be­yond any nec­es­sary lim­its” while in­fring­ing users’ fun­da­men­tal rights

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