Microsoft Will Now Deploy Two Legal Teams, Outside Former Federal Judge To Approve User-Data Searches

Following a court document revealing that Microsoft read the email of a third-party bloggerto uncover an internal leak, the company this evening announced a policy change, effective immediately, regarding how it searches user data that is part of its own network of services. Noting that it couldn’t, in its view, get a court order to search itself as none is needed, it will instead add layers of protection between it and its own users’ data.

First, the company will deploy a second legal team apart from the “internal investigating team” to vet the need for the data search. Following, a “former federal judge” will review the case, such as it is, and grant a decision. Microsoft will only execute a search into, say, an Outlook.com account if the retired judge consents that there is “evidence sufficient for a court order.”

And the number of this type of searches will be revealed in the company’s regular transparency reports. Microsoft exempts its own employees from the above. If you are an employee and have data on any Microsoft service, consider it public to your employer.

The change in tack is interesting given its speed – Microsoft came under fire in the last day or so. The online reaction to Microsoft’s admittedly legal search of the blogger’s personal emails and IMs has been swift and negative. We need better legal guidelines to protect user data from the service-providing company. That said, the boundaries that the company erected, provided they are extended and strengthened in the coming months, are at least a decent start. I say that at the risk of being too optimistic.

Here’s Microsoft’s statement:

We believe that Outlook and Hotmail email are and should be private.  Today there has been coverage about a particular case.  While we took extraordinary actions in this case based on the specific circumstances and our concerns about product integrity that would impact our customers, we want to provide additional context regarding how we approach these issues generally and how we are evolving our policies.

Courts do not issue orders authorizing someone to search themselves, since obviously no such order is needed.  So even when we believe we have probable cause, it’s not feasible to ask a court to order us to search ourselves. However, even we should not conduct a search of our own email and other customer services unless the circumstances would justify a court order, if one were available.  In order to build on our current practices and provide assurances for the future, we will follow the following policies going forward:

• To ensure we comply with the standards applicable to obtaining a court order, we will rely in the first instance on a legal team separate from the internal investigating team to assess the evidence. We will move forward only if that team concludes there is evidence of a crime that would be sufficient to justify a court order, if one were applicable. As an additional step, as we go forward, we will then submit this evidence to an outside attorney who is a former federal judge.  We will conduct such a search only if this former judge similarly concludes that there is evidence sufficient for a court order.
• Even when such a search takes place, it is important that it be confined to the matter under investigation and not search for other information.  We therefore will continue to ensure that the search itself is conducted in a proper manner, with supervision by counsel for this purpose.
• Finally, we believe it is appropriate to ensure transparency of these types of searches, just as it is for searches that are conducted in response to governmental or court orders.  We therefore will publish as part of our bi-annual transparency report the data on the number of these searches that have been conducted and the number of customer accounts that have been affected.

The only exception to these steps will be for internal investigations of Microsoft employees who we find in the course of a company investigation are using their personal accounts for Microsoft business.   And in these cases, the review will be confined to the subject matter of the investigation.

The privacy of our customers is incredibly important to us, and while we believe our actions in this particular case were appropriate given the specific circumstances, we want to be clear about how we will handle similar situations going forward. That is why we are building on our current practices and adding to them to further strengthen our processes and increase transparency.