Microsoft’s Legal Head: U.S. must Stop Secret Gag Orders

Brad Smith, Microsoft president and CLO, says law enforcement’s bad habit has to be broken: Secretly subpoenaing data from cloud providers—blocking them from telling customers—is undemocratic, and hurts international relationships, he argues.

In the wake of new government overreach revelations, he tells President Biden and AG Garland to show some leadership and stamp out the practice. It has its place, he says, but we’re sliding down a slippery slope where secret gag orders are becoming routine.

I’ve got a solution for the problem, but I’m not allowed to tell you. In today’s SB Blogwatch, we keep schtum.

Your humble blogwatcher curated these bloggy bits for your entertainment. Not to mention: The end of Linux is nigh.

President Speaks Unto President

What’s the craic? Emily Chang and Dina Bass report—“Microsoft’s Smith Says Secret Subpoenas Hurt U.S. Tech Companies”:

Nondisclosure orders
Microsoft Corp. President and Chief Legal Officer Brad Smith criticized secret data subpoenas sent by the government to cloud providers [such as] his company … saying gag orders on requests for personal information undermine freedoms and are hurting U.S. technology companies in Europe. [Typically firms are] under nondisclosure orders that prevent … them from talking about or alerting the subjects of the data seizures.

Smith said he expects to see additional regulation on the biggest technology companies in both the U.S. and Europe.

And Mike Lewis adds—“Microsoft president says secret subpoenas, gag orders should be the exception not the rule”:

Should be a high bar
Microsoft President Brad Smith sharply criticized the former Trump administration and what he characterized as years of overreach by the federal government when it seeks private citizens’ personal information … and then forbids those companies from disclosing it to the targets. … At issue is the growing scandal of the … administration’s efforts to investigate members of Congress and reporters by secretly obtaining their phone records.

[For example] Microsoft … received a secret request for the personal emails of a staffer for one of the members of Congress. The government also then got a court order that required [Microsoft] to refrain from talking about [it]. These techniques were not always standard, Smith said, and the use of them undermines basic freedoms. … Smith said he is not against secrecy when it is needed for major investigations but it always should be a high bar before it is invoked.

On Monday, Attorney General Merrick Garland said that the Department of Justice will revise its internal rules about when and why federal investigators will seek information from members of Congress and their staff. The DOJ also promised to look into reports of the agency seizing phone data seized from reporters.

The horse’s mouth? Brad Smith opines, “The secret gag orders must stop”:

This will require leadership
The past seven days marked another bad week for the collision between technology and democracy. … We’ve learned that the Trump Justice Department exploited [the cloud] as part of a secret effort to obtain emails in investigations of the media and Congress, two institutions where transparency is essential.

[This] abuse of secrecy orders is neither new nor confined to a single administration. … Democracy rests on a fundamental principle of government transparency. Secrecy should be the rare exception — not the rule. … Prosecutors too often are exploiting technology to abuse our fundamental freedoms. Just consider the targets of the latest investigations: reporters at CNN, the New York Times and The Post. Members of the House Intelligence Committee; their aides and family members. These are not investigations of [crimes] that threaten the nation’s safety.

[And] as President Biden works to rebuild trust across the Atlantic, European leaders worry that a U.S. government that secretly goes to court to demand data … about its own … citizens will do the same thing to them as well. … Not necessarily because they distrust the companies, but because they distrust our government and secret court orders.

Attorney General Merrick Garland needs to … recognize this issue is critical and treat it as a personal priority. We need changes in Justice Department policies to tighten the use of gag orders [and] a bipartisan initiative to codify those changes. … This will require leadership from the top.

Strong words, softly spoken. jrockway thinks Mister Smith makes some “good points” to Washington:

Fancy press release
Secrecy was once used so that people wouldn’t destroy the evidence the warrant sought. But now it’s easy to tell the third party to retain the evidence.

So there is no reason not to tell the target; they can’t change the outcome, but they can begin the counter legal process to ensure their rights are preserved. Sometimes I wonder if they want secrecy so that criminals don’t know they’re being investigated, and commit a crime that’s easier to prosecute. If they just stop committing crimes, then there’s no fancy press release saying how great the DA is or whatever.

Is it an abuse of power? Well, xalqor seems to think so:

Needs to be stopped
I’m much more concerned about the executive branch abusing its power to hurt political opponents than whether anything is inconvenient to the richest tech companies. … That said, [if] gag orders and classification are abused by government to hide information that’s embarrassing or personally damaging to politicians [it] needs to be stopped, and it’s great to see people with influence speaking up.

Expanding on the “we can’t trust the guv’mint” theme, xvector implores us to trust no one:

Illegal covert surveillance
The 300,000 warrantless secret gag orders issued by the FBI are why we should be E2EEing all the things. … If we want to preserve our privacy, then solid cryptography is our best bet.

All governments are corrupt, and as history shows, all governments can and one day will betray the trust of their citizens. … These rights should be enshrined in law, but practical reality means that we have to take our privacy into our own hands.

In the US, there are no exceptions to our constitutional rights, but the government itself routinely engages in unconstitutional and illegal covert surveillance of citizens. … At this point the only real solution is well-applied cryptography.

It’s the secrecy angle that really gets people. For one, bradley13, who sounds slightly sarcastic:

Human rights
Secret, secret, secret: Secret subpoenas, secret courts, secret trials. … Spying on your own citizens (and everyone else), then chasing whisteblowers out of the country. The US is a poster child for human rights.

But how can we fight secret gag orders if they’re secret? adrr notes this “interesting relevation”:

Actively contested
The contract between NY Times and Google required that Google disclose any data requests to allow NY Times to contest them. Google actively contested the gag order because of this clause.

That is going to be requirement in any service provider contract that I sign going forward.

Meanwhile, Narcocide winks conspiratorially:

Stop
For the last ****ing time, Microsoft doesn’t have any of my data you ****ers! Stop subpoenaing them!

And Finally:

The end of Linux is nigh (not clickbait, apparently)

Previously in And Finally


You have been reading SB Blogwatch by Richi Jennings. Richi curates the best bloggy bits, finest forums, and weirdest websites … so you don’t have to. Hate mail may be directed to @RiCHi or [email protected]. Ask your doctor before reading. Your mileage may vary. E&OE. 30.

Image sauce: Microsoft Corp.

Richi Jennings

Richi Jennings is a foolish independent industry analyst, editor, and content strategist. A former developer and marketer, he’s also written or edited for Computerworld, Microsoft, Cisco, Micro Focus, HashiCorp, Ferris Research, Osterman Research, Orthogonal Thinking, Native Trust, Elgan Media, Petri, Cyren, Agari, Webroot, HP, HPE, NetApp on Forbes and CIO.com. Bizarrely, his ridiculous work has even won awards from the American Society of Business Publication Editors, ABM/Jesse H. Neal, and B2B Magazine.

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