Calling the ECPA "antiquated," Microsoft hammered on the impact of data demands and gag orders on cloud-based services, the fastest-growing part of its business.
"The government ... has exploited the transition to cloud computing as a means of expanding its power to conduct secret investigations," Microsoft's lawyers asserted. "As individuals and business have moved their most sensitive information to the cloud, the government has increasingly adopted the tactic of obtaining the private digital documents of cloud customers not from the customers themselves, but through legal process directed at online cloud providers like Microsoft."
"Microsoft was like the frog in boiling water," said Jim Dempsey, executive director of the Berkeley Center for Law & Technology at the University of California Berkeley School of Law. "[The gag orders] just got to be too routine. They saw it in individual cases, then in dozens, then hundreds, then thousands. They reached a breaking point, much like Apple did with unlocking orders."
In effect, what Microsoft said in its complaint is that the law has been grossly misused by the government, either through policy or practice. "Microsoft is arguing that this is a systemic problem, and gotten to the point where gag orders are issued on a blanket basis. It's interesting that they've taken the declaratory route, which is almost like a class action. This is a systemic problem [Microsoft argued], and it deserves a systemic solution," Dempsey said.
DOJ spokeswoman Emily Pierce declined to comment on the Microsoft complaint, saying, "We are reviewing the filing."
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