In an about face, Microsoft's general counsel Brad Smith said today that the company won't again take it upon itself to search users' email accounts. Now, if the company suspects that a user's email contains evidence of a crime, Microsoft will turn the matter over to the authorities.
“Effective immediately, if we receive information indicating that someone is using our services to traffic in stolen intellectual or physical property from Microsoft, we will not inspect a customer’s private content ourselves,” Smith said in a blog post. “Instead, we will refer the matter to law enforcement if further action is required.”
That stance marks a reversal from the company's position last week, when it said it would tap a former federal judge to determine whether it should be able to scour a user's email account.
Microsoft clearly hopes that its new position will quell a controversy that erupted last week, when details surrounding the arrest of former employee Alex Kibkalo came to light. Kibkalo is accused of leaking information about Windows 8 to a French blogger, who turned out to be a Hotmail user. When Microsoft realized this, it searched the blogger's account in order to discover the leaker's identity.
News of the search prompted much criticism last week. The company initially defended itself by arguing that its terms of service allow for it to rifle through users' emails, in some circumstances. Microsoft also said that asking a judge to issue a search warrant wasn't an option. “Courts do not... issue orders authorizing someone to search themselves, since obviously no such order is needed. So even when we believe we have probable cause, there’s not an applicable court process for an investigation such as this one relating to the information stored on servers located on our own premises,” the company said last Thursday.
The digital rights group Electronic Frontier Foundation quickly pointed out the flaws in that logic, noting that the company had an obvious alternative to conducting its own search. “If Microsoft’s independent legal team concluded that there was probable cause, it could have passed the tipster’s information to the FBI to obtain a warrant and conduct the search under the auspices of the criminal justice system,” the EFF wrote. “The warrant protections enshrined in the Constitution would be preserved, ECPA [the Electronic Communications Privacy Act] would be satisfied, and Microsoft could have claimed the high moral ground.”Microsoft now says it will take the approach recommended by the EFF in the future. “While our own search was clearly within our legal rights, it seems apparent that we should ... rely on formal legal processes for our own investigations involving people who we suspect are stealing from us,” Smith wrote today. He added that the company will convene various groups -- including the EFF and Center for Democracy & Technology -- in an attempt to figure out best practices for the future.