Microsoft Says It Scared Away the FBI, Court Papers Show Otherwise

The government gave up the fight on purpose because it found the info it needed

This morning Microsoft published evidence of a dispute with the FBI in which the company defended the user’s privacy right and refused to provide sensitive details to the government even though it was specifically asked in a National Security Letter to do so.

In addition, the software giant bragged about the way it managed to scare away the FBI, explaining that it decided to move the dispute to the court and thus ask a judge to decide whether it should share user details or not given the fact that the government actually wanted access to information regarding an enterprise customer.

“We concluded that the nondisclosure provision was unlawful and violated our Constitutional right to free expression. It did so by hindering our practice of notifying enterprise customers when we receive legal orders related to their data,” Brad Smith, general counsel & executive vice president, Legal & Corporate Affairs, Microsoft, explained.

Smith then goes on to brag about the win, saying that the FBI actually withdrew its Letter once it found out that Microsoft moved the dispute to court seeking to block its request to gain access to customer details.

The problem is that this is only partially true. While the FBI indeed gave up the fight, this only happened because it actually managed to get the requested information by contacting the customer directly and not due to Microsoft’s intention to challenge the gag order in court.

Here’s an excerpt from the court documents (PDF viewer needed) published by Microsoft today:

“The government has filed a notice stating that the NSL (National Security Letter) information request has been withdrawn. The government’s notice informed the court that ‘the FBI obtained the requested information through lawful means from a third party, the customer, in a way that maintains the confidentiality of the underlying investigation.’”

In plain English, if it weren’t for the customer who agreed to provide the requested information, the FBI would have continued its efforts in the court in order to make sure that Microsoft complies with the gag order.

Of course, nobody knows for user whether Microsoft would have won the lawsuit, but it’s pretty clear that the software giant at least tried to protect the customer privacy by challenging the order in court. It’s still a big win, especially because it didn’t offer any details to the FBI, which has often tried to get access to a number of accounts belonging to Microsoft customers.

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