Microsoft Corporation Challenges the Government

While some of its “cooler” rivals get more media attention these days, Microsoft Corporation (NASDAQ:MSFT) is enjoying one of its best periods ever. Microsoft stock has not traded at these prices—around $55.00—since 1999.

Buoyant from its newfound success, Microsoft has taken a lead in the war between the technology industry and Washington. Privacy is the current battlefield. Apple Inc.’s dilemma over whether to unlock an “iPhone” belonging to the perpetrator of the December 2015 San Bernardino attacks has brought the issue of privacy and technology to prominence.

In reaction, Microsoft has sued the U.S. government to defend its right and that of its competitors to inform customers when a federal agency is snooping through their e-mails. The lawsuit is against the U.S. Department of Justice (DOJ) and Attorney General Loretta Lynch. Under this lawsuit, Microsoft is requesting a ruling to void a section of the Electronic Communications Privacy Act (ECPA). Passed by Congress in 1986, the act allows government agencies to demand information in e-mail and other Internet and cloud storage services to support criminal investigations. (Source: “Microsoft sues U.S. Government over Data gag Orders,” Computer World, April 14, 2016.)

This is merely the latest dispute to emerge between the U.S. government and Microsoft and the technology industry in a series of clashes over privacy. (Source: “Microsoft Sues Justice Department Over Secret Customer Data Searches,” The Wall Street Journal, April 14, 2016.)




Microsoft has accused the U.S. government of violating the Constitution of the United States, by preventing Microsoft from notifying thousands of customers about the government’s requests for e-mails and other documents.

According to Microsoft, the government is violating the Fourth Amendment, which establishes the right for people and businesses to be made aware of any investigation into their property. (Source: “Keeping secrecy the exception, not the rule: An issue for both consumers and businesses,” Microsoft Corporation, April 14, 2016.)

Microsoft observes that by justifying its snooping with the Electronic Communications Privacy Act, the government is increasingly asking for information from companies that store data in the cloud. Microsoft, in short, accuses Washington of having taken advantage of cloud computing as a way to extend power to conduct secret investigations.

In presenting the case, Microsoft may have taken an even more significant role in the battle against the government than Apple has already fought over its refusal to unlock the iPhone, as mentioned earlier. Microsoft has doubtless strengthened Silicon Valley’s struggle against the Obama administration over privacy.

The problem is that politicians have failed to grasp that the government’s violations of information and privacy rights in the immaterial world (i.e. the online world, the cloud, the “ether”) are no less invasive than a physically equivalent action in the material world, such as peeping, snooping, or spying. Rather, the government’s justification for insisting on violating rights protected under the Fourth Amendment is simply this: it is technically possible, so, yeah, let’s do it.

Microsoft, meanwhile, believes in the Fourth Amendment. Accordingly, it holds that access to the cloud should not be possible, just as it would not be possible in the physical world to rummage through people’s things, without informing them or without them noticing. There are, after all, constitutional guarantees against it. Brad Smith, Microsoft’s chief lawyer, added that the government’s requests also violate the First Amendment, which “guarantees our right to talk to customers about how government action is affecting their data.” (Source: Ibid.)

The police need a warrant to investigate a house or office. Microsoft’s chief lawyer explained that the company’s position is that tech companies must know when and if the government is accessing private data, whether this is stored in a physical room at the end of the corridor or in the cloud. People should not lose their rights simply because technology is moving to cloud computing.

The system devised by the federal government is highly intrusive. Microsoft admits that there may be exceptional circumstances in which cloud providers can avoid notifying customers when the government is accessing their cloud or other data, but even then, this can only be temporary. (Source: Computer World, op cit.)

Microsoft’s clash was perhaps inevitable. Indeed, many more tech companies will clash with Washington. More companies than ever in the U.S. are facing pressure to increase their transparency to consumer and protect their consumers’ rights to privacy. Congress is pondering legislation to ease some consumer concerns, but Microsoft is not interested in compromises. Instead, Microsoft’s legal challenge against Washington’s privacy violations is meant to fight for its consumers’ rights—and all tech users’ rights—under the Fourth Amendment of the Constitution.