• by Wendy Davis , Staff Writer @wendyndavis, April 14, 2016

In the last 18 months, judges across the country have issued 2,600 orders requiring Microsoft to secretly turn over its customers' emails.

Today, Microsoft challenged that practice. The company says in a new lawsuit that the gag orders -- many of which last indefinitely -- are unconstitutional.

"These lengthy and even permanent secrecy orders violate the Fourth Amendment, which gives people and businesses the right to know if the government searches or seizes their property," Microsoft President Brad Smith says in a new blog post. "They also violate the First Amendment, which guarantees our right to talk to customers about how government action is affecting their data."

The company's complaint, filed in federal court in Seattle, asserts that the government "has exploited the transition to cloud computing as a means of expanding its power to conduct secret investigations."

Microsoft notes that the ability to conduct secret investigations was more limited when files were kept in offices -- where agents couldn't very well rifle through papers without attracting attention.

"As individuals and business have moved their most sensitive information to the cloud, the government has increasingly adopted the tactic of obtaining the private digital documents of cloud customers not from the customers themselves, but through legal process directed at online cloud providers like Microsoft," the company says in its complaint.

The government can make those demands thanks to the Electronic Communications Privacy Act -- a 1986 law that authorizes secret orders to obtain digital communications. The law sets out a variety of factors that will justify gag orders, ranging from the possibility that targets will intimidate witnesses to the possibility that evidence will be destroyed.

The company's lawsuit comes as Congress is considering updating ECPA to give consumers more rights. One proposal that's garnered much attention would require the authorities to obtain search warrants for all emails. Currently, the law doesn't require search warrants for emails older than six months. Instead, when messages have been in storage longer than 180 days, they can be obtained with a subpoena -- which is easier to get than a search warrant. (Judges can only issue search warrants if the authorities show they have probable cause to believe that a search will uncover evidence of a crime. But judges can sign subpoenas for any information that's relevant to a pending matter.)

Lawmakers also are considering revising ECPA's secrecy provisions by allowing email providers to notify their customers about demands for email -- but only after 180 days have passed. It's worth noting that even a 6-month gag order may pose some of the same concerns that Microsoft has identified.

That reform bill is expected to face significant obstacles in the Senate.

Of course, judges don't have to wait for a change in law, given that they currently have the power to declare the gag orders unconstitutional.

Microsoft is urging the court to do so. "The government’s use of legal process directed at cloud providers such as Microsoft, when combined with accompanying secrecy orders, amounts to a substantial expansion of law enforcement’s ability to engage in secret search and seizure activity, adversely affecting both Microsoft’s right to communicate with its customers and the customers’ privacy interests -- simply because customers have moved their information to the cloud," the company says.