DOJ changes “gag order” policy, Microsoft to drop lawsuit


Enlarge/ Microsoft General Counsel and Executive Vice President Brad Smith addresses shareholder during Microsoft Shareholders Meeting December 3, 2014 in Bellevue, Washington.Stephen Brashear/Getty Images

The Department of Justice has recently changed its own policy, saying it would now halt the standard never-ending gag orders that companies are faced with when they receive legal demands to handover user data.

In addition, the new three-page memo dated October 19, written by Deputy Attorney General Rod Rosenstein, allows companies to ever tell customers that their data has been surrendered in most cases.

In April 2016, Microsoft sued the DOJ, asking a judge to declare unconstitutional the specific portion of federal law that deals with delayed notice, known as 18 USC 2705(b). Numerous large tech companies have sided with Microsoft in this case, including Apple, Google, Dropbox, Amazon, and Salesforce, among others.

By February 2017, a federal judge in Seattle ruled in the company’s favor, allowing the case to go forward, and had set a trial date for June 2018.

On Monday evening, in response to the new DOJ policy, Microsoft, which had sued the government over these portions of the Stored Communications Act, said in a Monday blog post that the company would end its lawsuit.

"This is an important step for both privacy and free expression," Brad Smith, the company’s top lawyer, wrote in the 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."

Smith called on Congress to take up the broader issue of reform to not only the SCA, but the entire now 30-plus-year-old law known as the Electronic Communications Privacy Act, or ECPA. The law has many outdated provisions in it and is in dire need of updating, but new legislation has stalled for years.

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