Privacy Law

Microsoft sues over law used to keep government access of customer emails a secret

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Microsoft has filed a lawsuit challenging a law that creates a low standard for banning disclosure of search warrants seeking its customers’ digital information.

Microsoft sued the Justice Department on Thursday in Seattle federal court, report the Wall Street Journal (sub. req.), Reuters, the Washington Post and the Seattle Times.

“Microsoft brings this case because its customers have a right to know when the government obtains a warrant to read their emails,” the suit (PDF) says, “and because Microsoft has a right to tell them.”

At issue is a provision of the Electronic Communications Privacy Act that allows courts to order secrecy if there is a “reason to believe” disclosure might hinder an investigation.

According to the suit, “This statute violates both the Fourth Amendment, which affords people and businesses the right to know if the government searches or seizes their property, and the First Amendment, which enshrines Microsoft’s rights to talk to its customers and to discuss how the government conducts its investigations—subject only to restraints narrowly tailored to serve compelling government interests.”

Federal courts have issued nearly 2,600 orders in the last 18 months that bar Microsoft from revealing warrants and other legal process seeking customer data, the suit says. More than two-thirds have no fixed end date.

Microsoft was among several tech companies that settled a suit two years ago over required secrecy in national security investigations, according to the Wall Street Journal article. The deal allows tech companies to disclose government requests within broad ranges.

George Mason University adjunct law professor Jamil Jaffer told the Washington Post that Microsoft may have an uphill battle on the Fourth Amendment claim. “As a general matter, the courts have held that Fourth Amendment rights are personal rights that can’t be raised vicariously,” Jaffer said.

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