• by Ray Schultz , October 24, 2017

Microsoft is withdrawing a lawsuit asserting its right to notify email account holders when the government accesses their personal data, following a change in policy at the Department of Justice.

Brad Smith, president and chief legal officer of Microsoft, said in a blog post published Monday that the revised DOJ policy “limits the overused practice of requiring providers to stay silent when the government accesses personal data stored in the cloud.”

He added that the change by the DOJ “helps ensure that secrecy orders are used only when necessary and for defined periods of time.”

As a result of the new policy, signed off on by Deputy Attorney General Rod J. Rosenstein and announced on Monday, Microsoft has started the process of dismissing the lawsuit it filed in April 2016.

Smith called on Congress to “make this positive step forward more permanent by updating outdated laws to better protect our digital rights while still enabling law enforcement to do its job.”

When filing its case last year, Microsoft stated that “2,576 of the legal demands we received from the U.S. government included an obligation of secrecy, and 68 percent of these appeared to be indefinite demands for secrecy,” Smith wrote.

Smith continued that the government “appeared to be overusing secrecy orders in a routine fashion — even where the specific facts didn’t support them — and were seeking indefinite secrecy orders in a large number of cases.”

Microsoft believes consumers have a right to know “when the government gets their email or documents, and we have a right to tell them,” Smith wrote. These are important principles established by both the Fourth and First Amendments to the U.S. Constitution.”

The American Civil Liberties Union has supported Microsoft, and at one point sought to join the lawsuit, Smith noted. Amicus briefs have also been  filed by several U.S. businesses.

This is the fourth privacy-related case filed by Microsoft, Smith continued. In one, a settlement allowed it to disclose the number of legal requests it receives.

The second led to the government withdrawing a National Security Letter “after we challenged a non-disclosure order attached to the letter,” Smith wrote.

In the third, Microsoft challenged a search warrant for customer email in Ireland belong to a non U.S. citizen. This case, which led to a favorable ruing by the Second Circuit Court of Appeals, is now before the U.S. Supreme Court.