Judge Refuses to Toss Microsoft’s Anti-Snooping Lawsuit

SEATTLE (CN) — A federal judge refused to dismiss Microsoft’s constitutional lawsuit against the Department of Justice for prohibiting tech companies from telling customers when the government reads their emails and other data.

U.S. District Judge James Robart granted some but not all of the government’s motions to dismiss Wednesday. He refused to dismiss Microsoft’s claim that it has viable constitutional concerns about privacy and the First Amendment.

Government surveillance of user data from tech companies has become increasingly controversial as electronic innovations outpace protections envisioned by law.

After the 2015 terror attack in San Bernardino, Apple refused to allow the government to unlock the shooters’ iPhones, saying to do so would “set a dangerous precedent.”
Microsoft appears to be taking a similar stance in its lawsuit challenging the government’s gag orders that prohibit tech companies from inform customers when agents request information.

“People do not give up their rights when they move their private information from physical storage to the cloud,” the complaint states.

Likening storage of information in the cloud to “file cabinets and desk drawers” in the pre-computer era, Microsoft says the government must give notice when it seeks private information, as it did in the old days.

It seeks a court order declaring the gag order sections of the Electronic Communications Privacy Act unconstitutional under the First and Fourth Amendments.

Robart denied the government’s motion to dismiss Microsoft’s First Amendment challenge, finding the company established injuries to its legally protected interests, and a likelihood of future harm.

Microsoft said in court filings that the government obtained 3,250 orders with “indefinite nondisclosure provisions” in the 20 months before Microsoft filed the lawsuit. Robart agreed that that demonstrates a probability of more orders being filed.

Robart rejected the government’s argument that the gag orders at issue did not constitute prior restraints: “the orders at issue here are more analogous to permanent injunctions preventing speech from taking place before it occurs.”

The judge added: “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.’ This prohibition amounts to a content-based restriction on speech, which, like a prior restraint, is subject to strict scrutiny.”

Robart , however, agreed with the government that Microsoft’s Fourth Amendment challenge to the gag orders should be dismissed based on Ninth Circuit and Supreme Court case law involving the third-party standing doctrine as it pertains to the constitutional rights of Microsoft customers.

“The court acknowledges the difficult situation this doctrine creates for customers subject to government searches and seizures under [the gag orders],” Robart wrote, noting that some customers “will be practically unable to vindicate their own Fourth Amendment rights.”

The resolution of the third-party standing doctrine with vindicating those rights “is more properly left to higher courts,” the judge wrote.

Robart, a President George W. Bush appointee, gained fame a week ago when President Donald Trump blasted him as a “so-called judge” for blocking Trump’s executive order against refugees from seven Muslim-majority countries. He was confirmed to his seat on the federal bench in 2004 by a 99-0 vote of the Senate.