Microsoft Sues to Kill or Reduce ECPA Gag Orders

Microsoft filed suit today seeking a judicial declaration that 18 U.S.C. § 2705(b) violates its First Amendment Rights, and the Fourth Amendment rights of the subjects of the orders.

I think this lawsuit is a Big Deal, and Microsoft has the right of it on moral grounds. On legal grounds it has a good arguable case, although the law is not so clear that I can call it a slam dunk. This excellent article by Steve Lohr in the NYT gives the outline, and quotes a soi-disant expert.

Perhaps the most interesting, if disturbing, fact is this one:

From September 2014 to March 2016, Microsoft received 5,624 federal demands in the United States for customer information or data. Nearly half — 2,576 — were accompanied by secrecy orders.

And of those secrecy orders, more than two-thirds contained no fixed end date. I.e. unless Microsoft were to go to court later to challenge them in individual proceedings, they orders would on their own terms last forever.

The text of Microsoft’s complaint is worth reading as it is very well done. Here’s the first paragraph:

Microsoft brings this case because its customers have a right to know when the government obtains a warrant to read their emails, and because Microsoft has a right to tell them. Yet the Electronic Communications Privacy Act (“ECPA”) allows courts to order Microsoft to keep its customers in the dark when the government seeks their email content or other private information, based solely on a “reason to believe” that disclosure might hinder an investigation. Nothing in the statute requires that the “reason to believe” be grounded in the facts of the particular investigation, and the statute contains no limit on the length of time such secrecy orders may be kept in place. 18 U.S.C. § 2705(b). Consequently, as Microsoft’s customers increasingly store their most private and sensitive information in the cloud, the government increasingly seeks (and obtains) secrecy orders under Section 2705(b). 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. People do not give up their rights when they move their private information from physical storage to the cloud. Microsoft therefore asks the Court to declare that Section 2705(b) is unconstitutional on its face.

Update: For an argument that courts will deny Microsoft’s facial challenge on the grounds that the claims can only be asserted ‘as applied’ — very much an emphasis of recent Supreme Court decisions disfavoring as facial challenges to statutes, see Jennifer Daskal at Just Security, A New Lawsuit from Microsoft: No More Gag Orders!. It’s more pessimistic than I would be, but not implausible.

Update2: Microsoft’s statement.

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