Court Says Microsoft Can Sue Government Over First Amendment-Violating Gag Orders

Legal Issues

from the prior-restraint,-but-for-forever-wars dept

One of several service providers to sue the government over its gag orders, Microsoft received some good news from a federal judge in its lawsuit against the DOJ. Microsoft is challenging gag orders attached to demands for data and communications, which the DOJ orders is statutorily-supported by the Electronic Communications Privacy Act (ECPA) and, if not, by supposed national security concerns.

As Microsoft pointed out in its lawsuit, the government rarely justifies its secrecy demands and frequently issues gag orders with no endpoint. Microsoft received nearly 2,800 of these gag-ordered requests over an 18-month period, with over two-thirds of them demanding silence indefinitely.

The good news is a federal judge has (partially) waved away the DOJ’s motion to dismiss and will allow Microsoft to proceed with its lawsuit, as Politico’s Josh Gerstein reports.

U.S, District Court Judge James Robart issued a 47-page opinion [PDF] Thursday allowing Microsoft to proceed with a lawsuit claiming a First Amendment violation when the government restricts internet providers from notifying subscribers about requests for their data.

“The orders at issue here are more analogous to permanent injunctions preventing speech from taking place before it occurs,” Robart wrote. “The court concludes that Microsoft has alleged sufficient facts that when taken as true state a claim that certain provisions of Section 2705(b) fail strict scrutiny review and violate the First Amendment.”

Section 2705(b) refers to the Stored Communications Act, which allows the government demand notice be withheld under certain circumstances, unless otherwise forbidden to by another section of the same law (Section 2703). Microsoft is looking to have both sections declared unconstitutional, especially given the severe upheaval the communications landscape has undergone in the thirty years since the law was passed.

Microsoft contends that Section 2705(b) is unconstitutional facially and as applied because it violates the First Amendment right of a business to “talk to [the business’s] customers and to discuss how the government conducts its investigations.” Specifically, Microsoft contends that Section 2705(b) is overbroad, imposes impermissible prior restraints on speech, imposes impermissible content-based restrictions on speech, and improperly inhibits the public’s right to access search warrants. Microsoft also alleges that Sections 2705(b) and 2703 are unconstitutional facially and as applied because they violate the Fourth Amendment right of “people and businesses . . . to know if the government searches or seizes their property.”

Microsoft contends that the statutes are facially invalid because they allow the government to (1) forgo notifying individuals of searches and seizures, and (2) obtain secrecy orders that “prohibit providers from telling customers when the government has accessed their private information” without constitutionally sufficient proof and without sufficient tailoring.

The DOJ argued Microsoft didn’t have standing to bring this complaint, as its Fourth Amendment rights aren’t implicated. Only its customers’ are. But the court points out that, if nothing else, the company does have standing to pursue its claims of First Amendment violations.

The court finds that Microsoft has sufficiently alleged an injury-in-fact and a likelihood of future injury. Microsoft alleges “an invasion of” its “legally protected interest” in speaking about government investigations due to indefinite nondisclosure orders issued pursuant to Section 2705(b)… The court concludes that Section 2705(b) orders that indefinitely prevent Microsoft from speaking about government investigations implicate Microsoft’s First Amendment rights.

The court goes on to point out that frequent use of indefinite gag orders certainly appears to be unconstitutional, given that they act as a “forever” application of prior restraint.

The court also concludes that Microsoft’s assertions of further civil injuries aren’t speculative, as the DOJ claimed. Judge Robart points to the government’s own actions as evidence of continued harm to Microsoft’s civil liberties.

Microsoft bolsters its prediction by alleging that over a 20-month period preceding this lawsuit, the Government sought and obtained 3,250 orders–at least 4504 of which accompanied search warrants—that contained indefinite nondisclosure provisions. In addition, Microsoft alleges that in this District alone, it has received at least 63 such orders since September 2014. Because these orders have been frequent and issued recently, the Government will likely continue to seek and obtain them. Accordingly, Microsoft’s “fears” of similar injuries in the future are not “merely speculative.”

Unfortunately, the court won’t grant Microsoft the standing to represent its users for Fourth Amendment purposes. Judge Robart points to a whole bunch of precedential decisions declaring otherwise, but at least takes a bit of time to discuss how denying Microsoft this opportunity likely means denying several of its users any sort of redress.

The court acknowledges the difficult situation this doctrine creates for customers subject to government searches and seizures under Sections 2703 and 2705(b). As Microsoft alleges, the indefinite nondisclosure orders allowed under Section 2705(b) mean that some customers may never know that the government has obtained information in which those customers have a reasonable expectation of privacy… For this reason, some of Microsoft’s customers will be practically unable to vindicate their own Fourth Amendment rights.

Expect the government to make heavy use of its “national security” mantra as it defends itself in this case. Those magic words have allowed all sorts of civil liberties violations in the past and still tend to move courts to the government’s side when deployed in DOJ motions. If the court does side with Microsoft when this is all said and done, it’s likely the remedy won’t be a restriction on gag orders, but more likely something analogous to the rules that now govern National Security Letters — periodic review of gag orders by the government and better avenues for raising challenges for companies affected. Then again, the court could simply punt it back to legislators and push them to fix the 30-year-old law whose dubious constitutionality is the source of numerous lawsuits against the federal government.

Filed Under: doj, ecpa, first amendment, gag orders, sca, stored communications act, surveillance
Companies: microsoft