A Microsoft executive on Wednesday testified that the Department of Justice routinely abuses “secrecy orders” in order to seize data on thousands of American citizens without letting them know.
Tom Burt, Microsoft’s corporate vice president for customer security and trust, made the accusations during a House Judiciary Committee hearing examining leak probes and prosecutorial abuse.
The hearing followed recent revelations that the Justice Department secretly seized the records of several news organizations while investigating leaks under both the Trump and Biden administrations—a practice that became increasingly routine during the Obama administration.
Relatedly, Fox News host Tucker Carlson has for the past couple of nights alleged on his show that the NSA has been monitoring his communications in an attempt to leak information, and get him kicked off the air.
Burt said that the news reports of the government surveilling the media may be shocking to many Americans, but it’s even more shocking that his company is routinely asked to handover “emails, text messages, or other sensitive data” of average citizens.
“This abuse is not new, it is also not unique to one administration, and is not limited to investigations targeting the media, and Congress,” Burt stated.
The executive said that Microsoft receives 2,400 to 3,500 of these requests for data per year, or about seven to 10 a day, and explained that the DOJ’s use of gag orders prevents them from informing users that government operatives have requested their private communications.
Because secrecy orders make it easy for partisans in the Intelligence Community to ignore due process laws while pursuing investigations, such abuses have become shockingly “routine,” according to the executive.
“Secrecy orders are too often used for routine investigations based on a cursory assertion that the government has met a statutory burden,” he testified. “The Justice Department’s own template does not even require facts justifying the need for secrecy. Instead, the template merely asserts that any disclosure would seriously jeopardize the investigation for a variety of boilerplate reasons. Notice to targets is an important safeguard for our constitutional rights.”
“It’s no surprise then that through the Obama, Trump and Biden administrations, up to a third of all legal demands we received from federal law enforcement include secrecy orders, up to 3,500 in just one year,” Burt continued. “And these are just the demands on Microsoft. Add the demands likely served on Facebook, Apple, Twitter and others and you get a frightening sense of the mountain of secrecy orders used by federal law enforcement in recent years.”
He added: “Before cloud computing, if law enforcement wanted to get access to data on a computer or a network in your home or your office, they would have to obtain and serve a warrant in order to enter your premises and collect evidence…. However, today, if law enforcement wants to secretly search your virtual office in the cloud, they just serve a boilerplate warrant and secrecy order on your cloud provider that prevents notice to you,” he explained.
Burt claimed that the tech giant has taken steps to resist these government intrusions by filing litigation to “assert our First Amendment right to inform our customers” and “ensure that citizens have the opportunity to exercise their Fourth Amendment rights.”
Concluding his opening statement, Burt said, “reform is necessary to protect the fundamental values that are the bedrock of our democracy. Without reform, abuses will continue to occur and they will occur in the dark.”
Another witness, George Washington University Law professor Jonathan Turley, said that current Supreme Court standards on data privacy are outdated and don’t do enough to protect Americans.
“We have constantly seen privacy protections that have failed with new technology and this age we’re living is making a mockery out of the standards made by the court,” Turley said.
Rep. Matt Gaetz (R-Fla.) noted that “the most watched cable news host,” Tucker Carlson, has been alleging on his show for the last several nights that the NSA has been monitoring his communications.
“Amazingly, the NSA has issued a statement that is so couched, it is functionally an admission,” Gaetz said. He called on Rep. Jerrold Nadler, the Chairman of the House Judiciary Committee, to join him in calling for an Inspector General investigation into the government’s intrusions into Carlson’s communications.
“Because these couched denials raise more questions than they provide answers,” he said.
— Rep. Matt Gaetz (@RepMattGaetz) June 30, 2021