Prosecutors can’t secretly look at your data anymore, thanks to Microsoft

When prosecutors want access to your digital information — on Facebook, Google, Skype or elsewhere — they’ve had the power to snoop around in secret, preventing companies from letting users know their data has been examined by the government.

Last week, Justice Department Deputy Attorney General Rod Rosenstein issued guidance declaring that prosecutors should no longer use such “gag orders,” except in extreme cases, the Washington Post reported.

Rosenstein’s guidance reportedly says that prosecutors must now explain why they are requesting such an order, and that these orders can only be granted for, “barring exceptional circumstances,” just “one year or less.” The old rules, which stemmed from a 1986 piece of legislation called the Electronic Communications Privacy Act (ECPA), which tech companies and civil liberties advocates have long condemned as outdated and insufficient.

Getting the Justice Department to back down from defending the ECPA — and getting new directives to reduce prosecutorial secrecy — mark a rare straight-up victory for Silicon Valley in the law and order world. A representative for the Justice Department did not respond to a request for comment.

Tech companies have Microsoft to thank, as the Washington state tech giant led the charge against prosecutor gag orders with a lawsuit filed in April 2016. At the time, the company’s president and chief lawyer Brad Smith said that in the previous 18 months before the suit, “the U.S. government has required that we maintain secrecy regarding 2,576 legal demands” which silenced Microsoft “from speaking to customers about warrants or other legal process seeking their data.”

This past February, a federal judge ruled in favor of Microsoft, and noted that in some cases, “the Government’s interest in keeping investigations secret dissipates after an investigation concludes and at that point, First Amendment rights may outweigh the Government interest in secrecy.”

On Monday, Brad Smith took a small victory lap in a Microsoft press release — but noted that this means the fight will now go to Congress.

“[The new policy] helps ensure that secrecy orders are used only when necessary and for defined periods of time,” Smith wrote. “Today’s policy doesn’t address all of the problems with the (ECPA) — the law at the heart of this issue — and we renew our call on Congress to amend it.”