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A federal judge in Seattle is set to hear arguments Monday morning from the Department of Justice as to why he should halt Microsoft’s efforts to allow it to tell users, in most cases, when the government demands customer information.
In recent years, Microsoft has been rather outspoken against what it views as overbroad government surveillance and has taken the government to court as needed.
This case, known as Microsoft v.
Department of Justice, marks yet another instance of those challenges.
As of now, Microsoft says, when the government presents it with legal demands for user data held in online storage, those court orders often come with a gag order that has no end date—which it claims is a breach of the First and Fourth Amendments.
The company compares this policy to older government attempts to access purely analog information (such as paper documents in a file cabinet), where the “government had to give notice when it sought private information and communications, except in the rarest of circumstances.”
As the company continued: “The government, however, has exploited the transition to cloud computing as a means of expanding its power to conduct secret investigations.”
Microsoft filed one last brief before the hearing late Sunday evening, saying that under Supreme Court precedent, it had “special circumstances” to challenge the government.
In April 2016, Microsoft sued the DOJ, asking a judge to declare unconstitutional the specific portion of federal law that deals with delayed notice, known as 18 USC 2705(b). Numerous large tech companies have sided with Microsoft in this case, including Apple, Google, Dropbox, Amazon, Salesforce, among others.
As Microsoft wrote in its 2016 complaint:
There may be exceptional circumstances when the government’s interest in investigating criminal conduct justifies an order temporarily barring a provider from notifying a customer that the government has obtained the customer’s private communications and data.But Section 2705(b) sweeps too broadly.
That antiquated law (passed decades before cloud computing existed) allows courts to impose prior restraints on speech about government conduct—the very core of expressive activity the First Amendment is intended to protect—even if other approaches could achieve the government’s objectives without burdening the right to speak freely.
The statute sets no limits on the duration of secrecy orders, and it permits prior restraints any time a court has “reason to believe” adverse consequences would occur if the government were not allowed to operate in secret.
Three months after Microsoft sued, the DOJ responded with a motion to dismiss, asking the judge to toss the entire case, largely on the grounds that Microsoft does not have standing to bring such a claim.
The DOJ further noted that Microsoft has not suffered any “concrete injury” by not being allowed to disclose further to its customers. Under current law, the DOJ argues, Microsoft can’t bring a “Fourth Amendment claim on behalf of others.”
Friends in high places
In July 2016, the company notably beat back the government in a separate case at the 2nd US Circuit Court of Appeals—the court found that the company does not have to turn over the contents of an Outlook.com user’s inbox to American investigators because that user’s data is held abroad, in Ireland. (The DOJ has subsequently filed an en banc appeal to a full panel of appellate judges, who have not yet decided if they will hear the case.)
The Seattle case has drawn widespread interest from numerous outside companies and organizations, ranging from Apple, to the American Civil Liberties Union, to the Society of Professional Journalists, to even Alaska Airlines.
Those groups largely say in their amici curae (friend of the court) filings that there will be a chilling effect on “reporter-source communications caused by fears of widespread unaccountable surveillance; these fears cannot be dispelled or remedied while the gag orders remain in place.” The companies, meanwhile, note that companies will be less likely to use American cloud-based services like Microsoft’s if that data is potentially subject to less-transparent government surveillance.
US District Court Judge James L. Robart will hold oral arguments at 10am Pacific Time on Monday at the federal courthouse in downtown Seattle.