Commentary

Microsoft Can Proceed With Suit Over DOJ 'Gag' Orders

In a partial victory for Microsoft, a federal judge said the company can proceed with a lawsuit challenging the constitutionality of "gag" orders that require the company to secretly turn over users' emails.

U.S. District Court Judge James Robart in Seattle rejected the Justice Department's argument that Microsoft's lawsuit should be dismissed. "Microsoft states that of the more than 6,000 demands for customer information that is has received, a majority of the demands are coupled with orders 'forbidding Microsoft from telling the affected customers that the government was looking at their information,'" Robart writes in a 47-page opinion dated yesterday and made public today. "This prohibition amounts to a content-based restriction on speech."

Robart's decision allows Microsoft to proceed with claims that the gag orders unlawfully restrict its free speech rights.

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But he also ruled that Microsoft lacked standing to challenge whether the orders violate the Fourth Amendment, which prohibits unlawful searches and seizures. As a practical matter, that portion of the ruling could leave Microsoft's users without a good way to argue that their emails should remain private.

"Microsoft may not bring a claim to vindicate its customers’ Fourth Amendment rights," Robart wrote.

"The court acknowledges the difficult situation this doctrine creates for customers subject to government searches and seizures," he added. "As Microsoft alleges, the indefinite nondisclosure orders ... mean that some customers may never know that the government has obtained information in which those customers have a reasonable expectation of privacy."

The decision marks the second time in a week that Robart is in the news; last Friday, he issued a temporary restraining order against President Donald Trump's controversial travel ban. The new ruling grew out of a lawsuit filed by Microsoft last April. The company alleged in its complaint that the government "exploited the transition to cloud computing as a means of expanding its power to conduct secret investigations."

"As individuals and business have moved their most sensitive information to the cloud, the government has increasingly adopted the tactic of obtaining the private digital documents of cloud customers not from the customers themselves, but through legal process directed at online cloud providers like Microsoft," the company asserted.

The authorities can make those demands thanks to the Electronic Communications Privacy Act -- a 1986 law that authorizes secret orders to obtain digital communications. The law sets out several factors that will justify gag orders, ranging from the possibility that targets will intimidate witnesses to the possibility that evidence will be destroyed.

Earlier this week, the House passed a bill that would reform ECPA by requiring the government to obtain a warrant for all stored online communications. Currently, authorities only need a warrant for emails or other documents that have been stored for fewer than eight months -- a relic from the 1980s, when people didn't yet store information in the cloud.

Whether the reform bill will move forward in the Senate remains uncertain. The House has voted to revamp ECPA in the past, but lawmakers in the Senate have proven unwilling to do so.

Even without a new law, judges always have the power to rule that law enforcement authorities have acted unconstitutionally. To date, at least one federal appeals panel said the constitutional ban on unreasonable searches and seizures trumps ECPA. In that case, the 6th Circuit Court of Appeals ruled that the police must obtain a search warrant before they can legally access email messages.

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