Judge Allows Microsoft Challenge of Gag Orders To Proceed
By Matt Day. Updated February 10, 2017.
A federal judge has allowed Microsoft's challenge of U.S. government secrecy orders attached to searches of emails and other electronic files to proceed, but dismissed a portion of the technology giant's lawsuit.
Microsoft sued the Justice Department last year, arguing that the gag orders often applied to search warrants for its customers' data were overly broad and unconstitutional.
The company said the orders, which sometimes prevent Microsoft from notifying customers that the government came calling, violated the company's First Amendment rights to discuss government conduct, as well as its customers' Fourth Amendment protections from unreasonable search and seizure.
The government asked U.S. District Judge James Robart to throw out the suit, arguing that the company could not bring Fourth Amendment claims on behalf of its customers. Those rights have to be asserted by individuals, Justice Department lawyers argued in a hearing last month.
Robart agreed to dismiss Microsoft's Fourth Amendment claims, citing legal precedent that prevents people and companies from defending those rights vicariously. Microsoft's First Amendment challenge could proceed, he said.
Microsoft President and Chief Legal Officer Brad Smith said in a statement he was pleased the case will be allowed to proceed. A spokesperson for the Justice Department said it is reviewing the decision and declined further comment.
The case is among the set of high-profile conflicts between technology firms and the government over the balance between privacy and law enforcement access to digital information.
Microsoft and other technology companies have called for an update to U. S. digital privacy laws, some of which are decades old. The government, in Microsoft's case and others, has argued that existing law gives prosecutors plenty of leeway to operate in the digital age while respecting individual and corporate privacy rights.