Microsoft is fed up with information requests from the US authorities that come with gag orders, and went to court to clarify if they really are legal. It’s very easy to sympathize with Microsoft in this case. I’m no lawyer so I’m not going to speculate on their chances to succeed. Instead, I’m going to tell you why I think Microsoft should win, and base all this on common sense.
The Snowden revelations made both mass and targeted surveillance known to ordinary people. Mass surveillance, that doesn’t define a target previous to data collection, is widely condemned. Targeted surveillance, on the other hand, is an old and widely used law enforcement tool. The police can get a warrant and search your home, and this is something we accept as long as the investigation is justified.
Most of us are probably also ready to accept these principles being transferred to the digital world. But the leap is more complex than one may think. The main issue, which Microsoft correctly points out, is that data can be copied from a cloud service without the owner noticing anything. A fundamental principle in civilized societies is that you can appeal punishments and other actions against you. But you can’t appeal something that has happened in secret.
Therefore it is of paramount importance that companies storing your data are transparent and tell you when you have been targeted. And now we are coming the problem that triggered Microsoft’s lawsuit. The US authorities are to an increasing extent using gag orders preventing service providers from doing this. So it is obvious that we really have a severe problem at hand here.
To be fair, all warrants do not come with a gag order. And there are certainly cases where a gag order can be justified. It’s easy to see the benefit of not telling the suspect he’s been targeted during the investigation. But investigation seeking to stop illegal behavior should always come to an end sooner or later. The authorities should either act to stop the activities or terminate the investigation, and the need for secrecy will cease to exist in both cases. Openness is even more important in the latter case. It would be convenient to cover up unfounded surveillance against targets that turned out to be innocent. Or too broad surveillance that included a lot of innocent persons in addition to the criminal. The gag orders are however often making it impossible for operators to inform these people, and this is why Microsoft rightfully acted.
I think there need to be clear rules about when warrants can be issued against someone’s stored data. And any related gag order must be justified and time limited. A time must come when every gag order can be examined independently, and the warrant target can evaluate if his rights have been violated. This is how constitutional states are supposed to work. It’s OK to let authorities transfer their widely accepted tools and methods into the digital world, but then citizens’ rights need to be transferred as well.
Good luck Microsoft, you are doing the right thing.