Microsoft’s top lawyer argued Tuesday that legislators “must make secrecy [orders] the exception” in government subpoenas demanding information about LinkedIn users.

LinkedIn, which is owned by Microsoft, is fighting what it calls overly broad subpoena demands from the US government, which sometimes come with secrecy orders that prevent LinkedIn from alerting customers whose information is being requested.

The company is asking federal courts “to enforce meaningful limits on both the scope of government demands and the secrecy that can accompany them,” wrote Jon Palmer, Microsoft’s chief legal officer, in a Tuesday blog post. “We recognize law enforcement’s important role in protecting public safety and investigating crime, and sometimes that does need to be done covertly. At the same time, customers and users deserve meaningful limits and independent oversight through an adversarial process.”

He pointed out: “People and organizations increasingly entrust their most sensitive information to online services. If providers cannot challenge demands they know are overbroad—or if courts may silence them without a rigorous, adversarial review—the safeguards the law requires will be weakened precisely when they are most needed.”

A tricky issue

The issue is a tricky one. Law enforcement often use this type of subpoena as an investigative tool, seeking those who are engaged in illegal activities. The theoretical justification for secrecy is to avoid alerting the investigative target to make it less likely the suspect will try to destroy evidence or flee the jurisdiction.

Government lawyers are supposed to only make secrecy requests when absolutely essential. Microsoft is suggesting that courts and congress need to step in to curtail blanket government efforts. 

“The Fourth Amendment protects the right to be free from unreasonable searches and seizures. That right applies to papers kept in a desk and it also applies when personal and business records are stored online,” Palmer wrote. “Online service providers, like LinkedIn and Microsoft, also have a First Amendment right to speak to their customers when the government obtains an order to search their private information. Secrecy may sometimes be justified, but it should be tailored to demonstrated needs and subject to meaningful review.”

He added: “The government must seek only relevant information, justify secrecy with specific evidence and infringe on speech to the least extent possible.” In his post, he pointed to a recent legislative effort in the US House of Representatives that might mitigate the issue if it ends up becoming law. 

“On August 31, the House passed legislation to rein in secret surveillance and strengthen notice protections when the government seeks data held by technology providers,” he wrote. “The reforms would place clearer limits on secrecy orders, require greater accountability, and help ensure that secrecy is the exception – not the rule. The Senate should act promptly to send these historic reforms to the President.”

LinkedIn privacy battles

LinkedIn itself is currently fighting litigation that accuses it of directly violating the privacy rights of its customers, and a federal judge this month dismissed another similar case, but gave plaintiffs permission to refile, with a caveat.

“Given LinkedIn’s further arguments that users voluntarily download browser extensions, which by their nature intentionally expose data to websites, it seems unlikely that the plaintiffs will ever be able to allege a privacy violation, much less prevail at the end of the day,” US District Court Judge Vince Chhabria wrote. “But in an abundance of caution, dismissal is with leave to amend.”

But, he added, if the amended complaint isn’t filed within 14 days, “dismissal will be with prejudice.”

Privacy now a ‘data stewardship obligation’

Jeff Valdes, a director at Acceligence, noted, “there is definitely some irony here.”

“If Microsoft wants customers to view it as a steward of their privacy when the government comes asking for their information, customers are naturally going to apply that same standard to how Microsoft and LinkedIn collect, use, protect, and disclose information themselves,” he said. “Privacy is difficult to compartmentalize. You cannot have one philosophy of customer privacy for government access, another for product design, and another for your own commercial data practices without eventually creating a credibility problem.”

Mike Wilkes, enterprise CISO at Aikido Security, agreed, pointing out, “without meaningful limits, judicial scrutiny, and an expiration mechanism, a temporary investigative necessity starts looking a lot like a permanent architecture for invisible surveillance. The individual may never have an opportunity to challenge the scope of the request, because they may never even know the request existed until prosecutors show up with an indictment.”

That, he said, “is why Microsoft’s argument matters, despite the obvious irony of LinkedIn simultaneously defending itself against privacy claims from its own users.”

But Ryan O’Leary, an IDC research director, offered a different perspective.

“Microsoft makes no bones about using the data contained within its own systems for its own purposes. Both things can be true: Microsoft can fight for the privacy of its platform while still not necessarily respecting the privacy rights of its end users,” O’Leary noted. “This seems to come down to protecting its own proprietary data sets, not some altruistic privacy crusade.”

 At the same time, Valdes pointed out, Palmer’s post highlights how deeply privacy has become a top-tier enterprise IT priority.

“Privacy is rapidly becoming a much broader data stewardship obligation,” he said. “Companies holding sensitive information increasingly have to think simultaneously about government requests, third-party access, their own collection practices, AI use, data retention and what they tell customers about all of it. If you want to be trusted as the custodian of the world’s data, customers are going to judge how you protect that data in every direction.”

However, Wilkes noted, “Microsoft does not need to be a perfect privacy saint to be right about this particular problem.”

This article originally appeared on CSOonline.