According to testimony Wednesday from a senior executive at Microsoft, federal law enforcement agencies secretly search the data of Microsoft customers many times per year.
Tom Burt, Microsoft’s corporate vice-president for customer security, and trust, stated to members of the House Judiciary Committee, that in recent years, federal law enforcement has presented the company with between 2,400 and 3,500 secrecy order per year or seven to ten per day.
Burt said that the widespread use of clandestine surveillance is a significant shift in historical norms.
This was prompted by the revelation that Trump-era Justice Department officials obtained phone records as part of leak investigations. These records included phone records not only of journalists, but also of members of Congress and their staffers. Microsoft was one of the companies that provided records in response to a court order. However, because of a gag order they had to wait for more than two years before disclosing them.
Brad Smith, Microsoft’s president has called for an end the use of secret gag orders. He wrote in a Washington Post opinion article that “prosecutors too often exploit technology to abuse our fundamental liberties.” Attorney General Merrick Galrland, however, stated that the Justice Department would cease its practice of seizing records from reporters and that it will formalize this position soon.
Burt was one of the witnesses in a Judiciary Committee hearing on potential legislative solutions for intrusive leak investigations.
Jerrold Nadler, Chairman of the House Judiciary Committee, stated in his opening remarks Wednesday that the Justice Department used outdated policies regarding digital data searches to target journalists in leak investigations. New York Democrat Jerrold Nadler stated that reforms were needed to prevent federal prosecutors from stepping in again. This idea was also shared by Republicans on the committee.
Nadler stated, “We cannot trust that the department will police itself.”
Burt stated that although the revelations that federal prosecutors sought data on journalists and politicians was shocking for many Americans, the scope is much wider. Burt criticized the prosecutors for seeking secrecy by using boilerplate requests that “enable law enforcers to just assert a conclusion about whether a secrecy or warrant is required.”
Burt stated that Microsoft Corp. cooperates with law enforcement in a wide range of criminal and national safety investigations. However, it sometimes challenges surveillance it considers unnecessary. This can lead to advance notice for accounts being targeted.
The Associated Press was one of the many organizations that participated in the hearing. It called for Congress to take action to ensure journalists have the right to guarantee confidentiality to their sources. Karen Kaiser, general counsel for AP, stated that reporters must be given prior notice and have the right to challenge any prosecutor’s attempts to seize data.
Kaiser stated, “It is crucial that reporters be in a position to credibly promise confidentiality to ensure the public has access to the information necessary to hold their government accountable and to assist government agencies and officials to function more effectively and with integrity.”
Burt suggested that the government should stop indefinite secrecy orders, and should be required to notify the recipient of the data demand after the secrecy order expires.
He said that prosecutors had sought a blanket gag to affect the government of a major U.S. metro for a Microsoft data request that targeted a single employee.
Burt stated, “Without reform abuses will continue and they will happen in the dark.”