Microsoft wants a federal judge in Seattle to strike down a law that allows courts to prohibit a tech company from telling customers that the government has sought their data.
In a civil suit filed Thursday against the Justice Department, the tech giant revealed that in the past 18 months alone federal courts have issued almost 2,600 orders preventing Microsoft from alerting customers their data has been obtained in criminal probes.
Notably, more than two-thirds – some 1,750 orders – had no fixed end date.
“This means that we are forever barred from speaking, and our customers are forever barred from hearing that the government has accessed their email or other content,” said Brad Smith, Microsoft’s president and chief legal officer. “So this matters to people and the rights that all of us are entitled to enjoy under the Constitution.”
With people storing their emails and other sensitive data in tech companies’ servers, the government is now increasingly serving search warrants on companies for suspects’ data rather than on the individuals themselves. So the only way the target knows their data is being searched is if either the government or tech company tells them.
More and more, Microsoft said, these warrants are accompanied by gag orders of indefinite duration. And in these cases, the firm said, the government is not required to notify the target.
The secrecy orders issued under the law in question, which is part of the Electronic Communications Privacy Act, violate customers’ Fourth Amendment right that a search be reasonable, the firm alleged. The law also violates Microsoft’s First Amendment right, the company alleged, to talk to its customers and discuss how the government conducts investigations.
“Not only is Microsoft right that an indefinite gag order creates a First Amendment problem, but, of even greater concern, there is a possibility that the target may never get notice that the government is looking through his or her emails,” said Jennifer Daskal, a law professor at American University and former Justice Department official.
But, she said, the orders with a time-limited gag pose less of an issue. “So long as there is a valid basis for delay, and the customer ultimately gets notice, there does not seem to be a constitutional problem,” she said.
Jamil N. Jaffer, an adjunct law professor at George Mason University and former Justice Department official, said the company likely will have “an uphill battle” bringing a Fourth Amendment claim on behalf of its customers. “As a general matter, the courts have held that Fourth Amendment rights are personal rights that can’t be raised vicariously,” he said.
The lawsuit comes as the spotlight has begun to turn away from a major legal battle involving a different tech giant – Apple – over encryption and privacy. It continues a trend of tech companies publicly pushing back against certain government requests for data and demands for secrecy in the wake of revelations in 2013 of widespread National Security Agency surveillance by former agency contractor Edward Snowden.
In 2013, Google and four other tech firms sued the government to be able to publish more information about national security orders for customers’ data, and reached a settlement that allowed some measure of greater transparency. In 2014, Twitter took it further, suing to be able to disclose the exact number and type of national security-related orders it received – including zero, if that were the case.
In 2015, Twitter amended its suit to challenge the gag order provisions in another law that authorizes foreign intelligence-gathering inside the United States, saying they were unconstitutional because they were of unlimited duration.
