Justice Department Limits Gag Orders; Microsoft Drops Lawsuit

By Del Quentin Wilber Features Dow Jones Newswires

The Justice Department has issued new guidelines to limit the use of gag orders when its investigators seek information from technology and communications companies, and Microsoft Corp. is responding by dropping a high-profile lawsuit against the department.

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The new rules, issued by Deputy Attorney General Rod Rosenstein, are meant to end the routine issuance of secrecy orders that have prevented companies from alerting customers to prosecutors' requests for their data, including subscriber information and emails.

"This update further ensures that the department can protect the rights of citizens we serve, while allowing companies to maintain relationships with their customers by notifying those suspected of crimes, or believed to have information relevant to a crime, in a timely manner that information was obtained relating to their user accounts," Lauren Ehrsam, a Justice Department spokeswoman, said in a statement.

The back-and-forth reflects the continuing tension between investigators' need to keep their work confidential and customers' right to know how their data is being used, a tension that has played out in new ways in the digital era.

The Justice Department's new rules require prosecutors to conduct an individual assessment regarding the need for each order, and to explain to a judge why it is needed.

Such reasons could include, for example, concerns about a fugitive fleeing justice, or the potential for destruction of evidence, if a customer were to learn about a search warrant or subpoena.

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Barring "exceptional circumstances," gag orders may only be imposed for a year or less, the new guidelines say. Among Microsoft's top complaints had been the issuance of secrecy orders without a defined end date.

The new rules come more than a year after Microsoft sued the Justice Department, alleging that the routine issuance of the gag orders violated the constitutional rights of the company and its customers. With the issuance of the new rules, Microsoft said it would dismiss the suit, which was brought in April 2016.

"The new policy limits the overused practice of requiring providers to stay silent when the government accesses personal data stored in the cloud," said Brad Smith, Microsoft's president and chief legal officer, in a blog post. "It helps ensure that secrecy orders are used only when necessary and for defined periods of time."

Write to Del Quentin Wilber at del.wilber@wsj.com

(END) Dow Jones Newswires

October 24, 2017 14:03 ET (18:03 GMT)