Credit: Emmanuel Huybrechts/Wikipedia

Microsoft vs the USA: who's right?

The tech giant is suing the US government for violating privacy rights in the cloud.

by Adam Gale
Last Updated: 15 Apr 2016

Big business has always had a hard time convincing you it’s on your side. The ‘faceless corporation’ dodging its taxes and harvesting your personal data isn’t exactly going to be your pal, is it? But this never stops them trying. The tech giants, with their bean bag offices, aversion to starched shirts and relatively fresh roots in Californian garages and Harvard dorm rooms, do better than most.  

One of their best opportunities to score good PR is in the realm of civil liberties. Apple recently took up arms against the FBI in the name of its users’ privacy, after the authorities demanded it unlock a dead terrorist’s iPhone. As the feds figured it out anyway with the help of a mysterious third party, that’s now a moot point.

Microsoft has picked up the baton where Apple dropped it. It’s suing the US government over indefinite gagging orders that have been applied to nearly a third (1,752) of the 5,624 federal demands for customer data it's received over the last year and a half. The case could have big implications for the future of cloud computing, where privacy has been a key stumbling block to customer take up.  

As ever with big ethical and legal questions, opinion is divided over who is right. Here are the main three arguments for each side, in a nutshell.

On the one hand (Microsoft)...

  • Without delving too deeply into American constitutional law (yawn, frankly), Microsoft is arguing that the indefinite gagging orders violate its right to free speech (1st Amendment - it wants to tell its customers if they’re being digitally frisked) and its customers’ right to know they’ve been searched under a warrant (4th Amendment).
  • The cloud, says the tech giant, is still your private space. The fact that you don’t own the servers containing the data doesn’t change that. Technology has moved on from the days when the laws governing internet privacy, such as 1986’s Electronic Communications Privacy Act, were framed. They simply haven’t been able to keep up. As a result, Microsoft alleges, the US government has ‘exploited the transition to cloud computing as a means of expanding its power to conduct secret investigations.’
  • By doing so, it is holding the economy back. The cloud is good for everyone, offering cheaper and more flexible IT services for established businesses and reducing the barrier to entry for start-ups. The explosion of secret government warrants is putting companies off, which is bad for everyone.

But on the other (the feds)...

  • Free speech is all very well, but it has its limits. Tipping off a criminal about an impending raid is stretching it. The authorities need to be able to conduct investigations without undue interference. The internet is not the Wild West – it should be governed by laws just as the high street is.
  • Is the cloud really your private property? Surely it’s analogous to handing over your possessions to a third party for safe storage, which legally means they (eg Microsoft) should get the warrant, not you.
  • Microsoft is not as altruistic as it would have you believe. ‘Prior to 2014, a lot of the [tech] companies weren’t adversaries. Then it became a business decision to be less friendly to law enforcement,’ International Association of Chiefs of Police president Terry Cunningham told the Wall Street Journal. Being seen as a defender of civil liberties is good for the brand and a good way to alleviate privacy concerns among potential customers.

Where do you stand - privacy and the tech giants, or the government and law and order? Tweet us to let us know.


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