Satisfied with a binding order issued Monday by Deputy Attorney General Rod Rosenstein that limits the use of gag orders that effectively silences companies that provide customers’ personal data on the government’s behest, Microsoft will withdraw a lawsuit it filed against the government in April 2016.
“This new policy limits the overused practice of requiring providers to stay silent when the government accesses personal data stored in the cloud,” said Microsoft President and Legal Officer Brad Smith, who called the Justice Department move “an important step for both privacy and free expression.”
The order “helps ensure that secrecy orders are used only when necessary and for defined periods of time,” Smith wrote in a blog post. “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.”
The Justice Department directive calls for prosecutors to “conduct an individualized and meaningful assessment regarding the need for protection from disclosure prior to seeking” an order “and only seek an order when circumstances require.”
In addition, prosecutors must “tailor the application to include the available facts of the specific and/or concerns attendant to the particular type of investigation,” the order said. Since “the factors justifying protection from disclosure may be similar in many cases, particularly at the outset of an investigation,” prosecutors, as appropriate, “may state the extent to which the stage of the investigation limits the availability” of facts that justify the order.
While Microsoft now will take steps to get its lawsuit dismissed, the Justice Department policy “doesn’t address all of the problems with the Electronic Communications Privacy Act (ECPA) — the law at the heart of this issue” and doesn’t mean the company is “done with our work to improve the use of secrecy orders,” Smith said, calling once again for Congress to amend the ECPA.