Smith also described how the U.S. government has taken advantage of an “outdated” 1986 law, the Electronic Communications Privacy Act (ECPA), which he says law enforcement agencies use more and more to issue these gag orders when they request data stored remotely in the cloud.

“Today, individuals increasingly keep their emails and documents on remote servers in data centers,” Smith writes, “in short, in the cloud. But the transition to the cloud does not alter people’s expectations of privacy and should not alter the fundamental constitutional requirement that the government must—with few exceptions—give notice when it searches and seizes private information or communications.”

As other privacy advocates have argued, Smith also noted that “secrecy provisions in ECPA today are out of step with other U.S. laws that contain clearer limitations on secrecy provisions and allow law enforcement flexibility for extensions.”

The Guardian observes that technology corporations have recently become bolder about challenging the U.S. government when it comes to questions of privacy, especially since Apple took such a hard stance against the FBI’s attempt to hack an iPhone involved in the San Bernardino shooting.

“For legal scholars,” the Guardian reports, “Microsoft’s battle in this case reflects a broader fight over a trend of more and more court orders being filed under seal or, in national security cases, classified.”

“How can we tell if the court process is legitimate if so much of it is under seal?” asked Jennifer Granick, director of civil liberties at Stanford Law School’s Center for Internet and Society, in an interview with the Guardian.

Technology news site Ars Technica writes that “Microsoft has recently mounted a number of other legal challenges against the U.S. government’s attempts to access customers’ data. One such case relates to a U.S. search warrant to access the customer e-mails of a foreign individual in Ireland.” That case is still pending.

This is the latest chapter in Microsoft’s ongoing saga navigating customer privacy and demands for access from the U.S. government, in which it has veered from easing federal agencies’ access to customer data to taking extensive measures to evade those agencies’ reach.

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