DOJ changes 'gag order' policy as Microsoft declares legal victory

In what Microsoft is declaring as an "unequivocal win," the U.S. Department of Justice has agreed to make changes to its policy towards so-called "gag orders."

The U.S. Department of Justice has agreed to decrease its use of secrecy orders when requesting technology companies to turn over customer data. Citing what it saw as an overuse of such orders, which prevent companies from alerting customers that their data had been accessed by the government, Microsoft filed suit against the DOJ in 2016. Microsoft now says it will drop its lawsuit in response to steps the DOJ is now taking to curb their use.

In a blog post on the issue, Microsoft's President and Chief Legal Officer, Brad Smith, declares the policy change an "unequivocal win" for its customers. Says Smith:

This new policy limits the overused practice of requiring providers to stay silent when the government accesses personal data stored in the cloud. It helps ensure that secrecy orders are used only when necessary and for defined periods of time. This is an important step for both privacy and free expression. It is an unequivocal win for our customers, and we're pleased the DOJ has taken these steps to protect the constitutional rights of all Americans.

Despite the change in policy at the DOJ, Microsoft argues that Congress should still address the underlying law at the center of the issue, the Electronic Communications Privacy Act (ECPA) enacted in 1986. In particular, Microsoft has thrown its support behind a bipartisan bill introduced in July, called the ECPA Modernization Act of 2017, which contains a specific provision addressing secrecy orders.

You can read Smith's full remarks at the Microsoft On The Issues blog.