Microsoft’s case against the US Department of Justice begins today (23 January), but the first hurdle could prove insurmountable for the tech company.
Privacy problems have always circulated online, but they have reached a zenith in recent years on the back of former NSA contractor Edward Snowden’s revelations in 2013.
Proving beyond reasonable doubt that US authorities (as well as surveillance agencies for nations friendly to the US) consistently access digital records of users around the world, it put tech companies in a tough spot.
US authorities can compel tech companies to provide information, often keeping the transaction of data between company and state secret, far removed from agreements between customers and service providers.
This, according to Microsoft, has eroded trust in its core services, something it is seeking to address.
So today in the US, a federal judge will hear arguments from the Department of Justice (DoJ), the latter hoping to quash Microsoft’s attempts to reveal governmental demands for customer information.
Microsoft isn’t happy with the gag orders on these requests, which it claims are in breach of the US constitution.
Under antiquated laws, Microsoft claims the US government “has exploited the transition to cloud computing as a means of expanding its power to conduct secret investigations”.
The law allowing searches goes “far beyond any necessary limits” and infringes users’ Fourth Amendment rights against unlawful search and seizure, Microsoft claims.
The problem for Microsoft, which is supported by many tech companies in this battle, is that Fourth Amendment protections have generally only been provided to individuals, not third parties acting on individuals’ behalf. It is this that the DoJ will argue.
Should Microsoft not be allowed to defend its customers’ constitutional rights, the case could die.
Microsoft has taken the fight to the US government for a number of years now. Last July, it won a landmark ruling after fighting DoJ requests to hand over data from servers located outside the US.
Judge Susan Carney said communications by US service providers on servers outside the US are beyond the reach of domestic search warrants that have been issued under the Stored Communications Act 1986.
That was a three-year battle between Microsoft and the US, with the company’s Irish base at the core of the issue.
Today’s court date will be no less important.