National Post

U.S. agrees to limit ‘sneak and peek’ searches

Microsoft argued for user privacy

- Dina Bass Chris Strohm and

SEATTLE/ WASHINGTON• The U.S. Justice Department is moving to scale back the use of orders forcing technology companies to turn over customer data without alerting users to the clandestin­e intercepti­on of their informatio­n.

Microsoft Corp., which sued the government over the practice last year, and other internet giants have argued the future of cloud computing is in jeopardy if customers can’t trust that their data will remain private.

In response to new guidelines quietly issued last week by the Justice Department aimed at making “sneak-and-peek” searches more selective, Microsoft said late Monday it plans to drop its lawsuit, which was backed by rivals including Alphabet Inc.’s Google and Inc.

The rapid growth of the cloud, in which customer data is stored by providers like Microsoft, Apple Inc., Amazon and Google in the technology companies’ own servers, has increased the frequency of warrants seeking informatio­n.

Going forward, prosecutor­s must “conduct an indi- vidualized and meaningful assessment” of whether a secrecy order is needed, according to a memo issued by Deputy Attorney General Rod Rosenstein. For internet users whose data is sought, the government shouldn’t delay notifying them for more than a year, except “barring exceptiona­l circumstan­ces,” according to the memo.

Microsoft argued in court that too many data requests carry secrecy provisions, often of indefinite duration, that violate the company’s free-speech rights.

“Until today, vague legal standards have allowed the government to get indefinite secrecy orders routinely, regardless of whether they were even based on the specifics of the investigat­ion at hand,” Microsoft president and chief legal officer Brad Smith said in a statement. “That will no longer be true.”

The Justice Department said the changes will protect the rights of citizens and preserve companies’ relationsh­ips with their customers.

“This update further ensures that the department can protect the rights of citizens we serve, while allowing companies to maintain relationsh­ips with their customers by notifying those suspected of crimes, or believed to have informatio­n relevant to a crime, in a timely manner that informatio­n was obtained relating to their user accounts,” the department said.

The dispute centred on the applicatio­n of the Stored Communicat­ions Act, part of the 1986 Electronic Communicat­ions Privacy Act, a law that predates the advent of the World Wide Web.

Microsoft contended that while some cases might require secrecy because disclosure could create a risk of harm or endanger the government’s case, the practice had become far too common.

In the 18 months before Microsoft sued in April 2016 in Seattle, the company said 2,756 of the legal demands it received from the U. S. government came with secrecy orders and two- thirds appeared to extend indefinite­ly.

Microsoft defeated the government’s bid for dismissal of the suit in February, though the judge didn’t rule on the merits of the case.

Microsoft in September announced new cloud encryption technology that could offer an end- r un around government secretive snooping by enabling customers to control access to content stored in Microsoft data centres.

The company said that in spite of the government announcing a new approach to sneak-and-peek searches, Congress should change the law.

Microsoft supports the ECPA Modernizat­ion Act, a bipartisan bill introduced in July that would, among other things, address secrecy orders. The company also didn’t rule out further litigation on the issue.

“We applaud the Department of Justice for taking these steps, but that doesn’t mean we’re done with our work to improve the use of secrecy orders,” Smith wrote.

 ?? JOHN MOORE / GETTY IMAGES ?? Microsoft has dropped a lawsuit against the U. S. government over orders to release customer data after the Justice Department modified its guidelines for such orders.
JOHN MOORE / GETTY IMAGES Microsoft has dropped a lawsuit against the U. S. government over orders to release customer data after the Justice Department modified its guidelines for such orders.

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