Microsoft said Wednesday that it is too easy for the federal government to surveil the public’s emails, texts, and other data hosted by tech companies by abusing gag orders and warrants.
Microsoft, one of the biggest email and cloud-computing companies in the world, receives as many as 10 secret gag orders every day to access user data and up to 3,500 per year, accounting for as much as a third of all law enforcement requests the company gets, Tom Burt, Microsoft’s corporate vice president for customer security and trust, said during a House Judiciary Committee hearing Wednesday.
“What may be most shocking is just how routine court-mandated secrecy has become when law enforcement targets Americans’ emails, text messages, and other sensitive data stored in the cloud,” Burt said during a hearing focused on legislative solutions to potentially unnecessary government surveillance and investigations.
“We are not suggesting that secrecy orders should only be obtained through some impossible standard,” Burt said. “We simply ask that it be a meaningful one … Without legislative reform, abuses will continue to occur, and they will continue to occur out of sight,” he added.
Law enforcement’s use of Big Tech companies to target the individual records of people has garnered new attention in the past month with the revelation that the Justice Department during the Trump administration secretly obtained phone records belonging to journalists and members of Congress and their staffers as part of a leak investigation.
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Burt said that although the admission that federal prosecutors had unfairly sought information about journalists and political figures “was shocking to many Americans,” the degree of government surveillance is much bigger than that.
Microsoft suggested a number of legislative proposals to curb this problem: ensure that gag orders last no more than 90 days, with a single 90-day extension, mandate that judges issue written analyses for every secret gag order requested, require judges to use strict scrutiny on law enforcement before issuing them warrants, and allow tech platforms to have the legal right to challenge gag orders.
“Secrecy should be the rare exception, not the norm. Providing notice to an individual the government targets with a warrant or other demand for information is a critical protection against government overreach,” Burt said.
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“Safeguarding one’s constitutional rights requires knowledge that those rights are at risk. Without notice, an individual is left in the dark, unable to raise privileges or other objections that may be applicable and unable to protect their rights in court,” he added.
