Microsoft revealed earlier this week that the company scanned a blogger’s Hotmail account to track down a Windows 8 leaker. An ex-Microsoft employee, who allegedly leaked confidential copies of Windows 8 and anti-piracy software, was subsequently arrested and charged after Microsoft identified the individual from a search of a French blogger’s Hotmail account. Microsoft used a clause in the company’s terms of service for Outlook.com to allow it to scan the account. The move has triggered widespread debate over the practice, and Microsoft tells The Verge that it’s planning to alter its policies for future cases.

While courts don’t issue orders to authorize a company to search its own data, Microsoft’s John Frank, VP and deputy general counsel, admits "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." As a result, Microsoft’s policies are being changed so that a legal team, separate from the internal investigations team, will assess any cases to determine whether they would justify a court order. Microsoft says it will also submit the evidence to an outside attorney and only conduct a search if the former judge deems it necessary.

Microsoft promises transparency reports in the future

Microsoft is also planning to publish a bi-annual transparency report that will detail the number of searches and number of customer accounts 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," explains Frank. "And in these cases, the review will be confined to the subject matter of the investigation." Microsoft’s full statement is available below:

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.

John Frank, Vice President & Deputy General Counsel