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Microsoft sues DOJ over demands for access to customer data

In the wake of the FBI’s showdown with Apple last month, a new tech giant is taking up arms against government oversight. Microsoft sued the Department of Justice Thursday, arguing that it is unconstitutional for the government to request access to a customer’s data while banning Microsoft from informing the individual in question. Microsoft president Brad Smith joins Judy Woodruff for more.

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  • JUDY WOODRUFF:

    Now: a high-profile showdown between a tech giant and the U.S. government over accessing private data.

    This time, it's Microsoft. Yesterday, the company filed a suit against the Department of Justice in federal court. Microsoft argues it's unconstitutional for the government to ask for customers' personal data or e-mails in most cases without the individuals' knowledge. The company says it's received more than 5,600 requests for such data from the government in the last year-and-a-half, often from the cloud or remote servers. And nearly half of those requests come with a ban from the government on alerting customers.

    Brad Smith is the president of Microsoft. He joins me from company headquarters in Redmond, Washington.

    And welcome to the program, Brad Smith.

    I do want to point out we invited the Department of Justice to join the interview, but they declined.

    So, let me begin by asking you, what is it that the federal government is doing that Microsoft doesn't like?

  • BRAD SMITH, President, Microsoft:

    Well, what gives us concern is the fact we have received almost 2,600 — almost 2,600 of these so-called gag or secrecy orders over the last 18 months.

    Over two-thirds of them have no end date at all. So it means that we are permanently prohibited from telling customers that the government has accessed, read and obtained copies of their e-mails. We feel that infringes on the constitutional rights of consumers and businesses to be secure from unreasonable government searches.

    It infringes on our First Amendment right to speak, to share information with our customers.

  • JUDY WOODRUFF:

    Well, we know the Justice Department has not responded to the lawsuit. They have not said anything publicly, but we know that in the past they have said these are investigations that involve criminals, people who are breaking the law, that involve — that are perhaps involved in potential terrorist acts.

    Why not work with the government when they're trying to go after the bad guys?

  • BRAD SMITH:

    Well, this is an issue that we have discussed with various officials in government for some time.

    And we readily recognize that there are many cases where there should be some kind of secrecy, that there is a real danger if information is disclosed. But we feel that these kinds of secrecy orders have been — become too routine. They're being issued in cases that involve businesses, as well as consumers.

    And it especially concerns us that there is no end date. Let's face it. Forever is a long time. Even military secrets are declassified eventually. Why should we have a country where people will never learn that the government has accessed their e-mails?

  • JUDY WOODRUFF:

    Well, I was reading today that some investigators who have worked on, I guess, in this area have said that if you notify people who are being investigated, you run the risk that they are going to change their communication pattern, they're going to tamper with evidence. They may even try to leave the country. What about that?

  • BRAD SMITH:

    Well, that really goes to the point that, yes, there are times when a nondisclosure order is a sensible thing to do.

    But the law in this case does, in our view, not require the government to make the kind of compelling showing that it should, and, hence, the government is getting these kinds of orders in too many cases. And even in cases where this kind of secrecy is needed, eventually, the need for secrecy goes away.

    And yet, even then, people will never learn that the government accessed their e-mail. And that, as much as anything, really runs, we think, right into the constitutional protections we all should enjoy.

  • JUDY WOODRUFF:

    Brad Smith, what do you say to those who look at this and say, well, this is just an effort to do what's good for business, rather than what's good for the American people, for the American government?

  • BRAD SMITH:

    Well, I think this is fundamentally about what is good for people and their rights. It is good for technology. It is good for businesses who are customers as well, whose e-mails are being read.

    But, most importantly, I think it's about one thing. It's about ensuring the kinds of values that we have had in this country under the Constitution for 230 years remain intact even as technology changes, and information that we have long stored on paper is now stored in the cloud instead.

  • JUDY WOODRUFF:

    Did you think about another course of action other than filing suit? Did you try to sit down with the government and talk to them about what they're doing?

  • BRAD SMITH:

    We have had multiple conversations about these and similar issues. And this lawsuit doesn't for an instant mean that those kinds of conversations should come to an end.

    I definitely believe that, ultimately, across the technology sphere, it's going to take a lot of good discussion to find new solutions. But we have found in recent cases that things were going the wrong way, not the right way, and there does come a point when you just have to put a stake in the ground and say that these constitutional rights matter, and we need the courts to intervene.

  • JUDY WOODRUFF:

    Is there a middle ground, though? Is there some — something, some level of information the government could share with you that would make you comfortable turning this individual's e-mails over to them without notifying the individual?

  • BRAD SMITH:

    I think we always have to ask ourselves at the end of the day, is there some kind of middle ground that might emerge? And I think the answer is probably yes.

    If we look at other statutes in other areas of federal law, there is typically a right for the government in the right circumstances to keep something secret for 30 days or 90 days, and, if the need continues, the government can go back, and it has to make its case before a magistrate yet again.

    I think that if we could move this area of the law to be more like that kind of area, we'd find a middle ground emerge.

  • JUDY WOODRUFF:

    And just finally, there are some who are looking at this and saying, is this some kind of a turning point in this, I guess, larger tech industry — battle with the tech industry — battle with the government on the part of the tech industry over privacy, over the citizens' privacy?

  • BRAD SMITH:

    Well, I think we're living in a time where it feels like there is a turning point every other month.

    When I step back from it all, I think what we're seeing is this evolution of technology, people storing things digitally, storing them in data centers. And across the board, whether you're in government or you're in the tech sector, we're all trying to find a path, so that the traditional values we have had in this country, the traditional rights we have enjoyed, will remain, so that information that's stored in the cloud gets the same kind of protection as information stored on paper.

    That, I think, is what we need to continue to seek.

  • JUDY WOODRUFF:

    Brad Smith, the president of Microsoft, we thank you for talking with us.

  • BRAD SMITH:

    Thank you.

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