In April, Microsoft sued the U.S. Department of Justice, arguing that its “customers have a right to know when the government obtains a warrant to read their emails,” and that “Microsoft has a right to tell them.” While Microsoft might be the only plaintiff in this case, dozens of tech biggies, media companies, privacy advocates, and others have let the court know that they stand behind Microsoft.
The lawsuit, for those coming late to this story, centers on the Electronic Communications Privacy Act (ECPA) and the related Stored Communications Act (SCA) and their rules for seizure of electronic files.
See, when law enforcement raids an office looking for physical paper documents, it’s almost impossible to do this without tipping off the person to whom these files belong. Now, with so many documents stored remotely, it’s entirely feasible that the government could seize copies of someone’s files without that person ever having a clue.
The ECPA prohibits Microsoft and other companies from being transparent with users about such requests for their data if the government has a “reason to believe” that disclosing this request might hinder an investigation.
However, Microsoft contends that government is abusing this “reason to believe” standard and applying it so generally that it violates customers’ Fourth Amendment protections and Microsoft’s First Amendment rights to communicate with its users.
“People do not give up their rights when they move their private information from physical storage to the cloud,” wrote Microsoft in the lawsuit, filed in April in a federal court in Seattle.
The government has asked the court to dismiss Microsoft’s case, and last Friday was the deadline for third parties with an interest in this lawsuit to file briefs with the court in support of either side. Not surprisingly, these folks gave the judge a lot of reading material for the long holiday weekend.
In a brief [PDF] filed jointly by the Electronic Frontier Foundation, Access Now, and New America’s Open Technology Institute, these organizations point out that “government notice has been a regular and constitutionally required feature of search and seizure warrants since the nation’s founding,” and that this notice should be required even now that authorities have the ability to seize documents without ever alerting the owner of these files.
“That the government can obtain information from Microsoft or other cloud providers without disturbing the targets of investigations is a mere happenstance of modern technology and social practices that cannot affect the notice requirement,” reads the EFF brief.
Amazon, Google, Yahoo, Dropbox, LinkedIn, and others filed a brief [PDF], referring to the SCA as a “troubling outlier” that “departs sharply from the norm” of long-held rules for providing notice to people whose property is seized during an investigation.
“First, where the government uses a warrant to compel the service provider to turn over user content, it may do so ‘without required notice to the subscriber or customer,'” explains the brief. “Second, and even more disturbing, the government may ask a court to impose a gag order on the service provider, precluding it from ‘notify[ing] any other person of the existence of the warrant’… The gag order remains in effect ‘for such period as the court deems appropriate.'”
Dropbox says that, just in 2016 alone, it has already received more than “200 gag orders of indefinite duration.” LinkedIn doesn’t give a number but says that around two-thirds of the gag orders it has received over the last year have no endpoint. Google and Yahoo each say that around 60% of their gag orders are indefinite.
So, in theory, a Google user could be investigated, arrested, tried, exonerated (or found guilty) and even then Google could be legally barred from revealing to this user that their data had been seized.
“This new threat of secret government searches has several important consequences. The first is the obvious damage to the privacy of all of us who use the Internet,” reads the brief. “To have a government agent secretly pore over a digital record of the details of one’s life, from the intimate to the mundane, ‘strike[s] at the very heart of the interests protected by the Fourth Amendment.'”
Additionally, fears of this sort of secret surveillance “could limit the adoption and use of cloud services… Users should not be put to a choice between reaping the benefits of technological innovation and maintaining the privacy rights guaranteed by the Constitution.”
In Apple’s brief [PDF], filed jointly with Mozilla, Twilio, and others, the company points to the sheer number of claims, the virtual impossibility of fighting these gag orders one at a time, and how these orders put cloud storage providers in an awkward position of being the only party able to protect their users’ rights.
“Apple has received approximately 590 unlimited or indefinite duration gag orders in 2016 alone,” explains the brief, noting that it would be impractical for any company to try to challenge so many orders. “The volume of nondisclosure orders providers receive puts them in a unique position — they are the only parties that have the information necessary to assert both their own First Amendment rights and their customers’ Fourth Amendment rights.”
In addition to these briefs, support came from companies and groups as disparate as the National Association of Manufacturers, Delta Air Lines, Eli Lilly, BP, Twitter [PDF], the U.S. Chamber of Commerce [PDFchambercommerceamicu], and Fox News, the Washington Post, NPR, Seattle Times, and the Associated Press — all of whom jointly filed a single brief [PDF].
“Reporting about the government’s use — and misuse — of its limited statutory power to obtain electronically stored communications is critical to a robust public debate on the nature and extent of government surveillance of private communications,” explain the motley crew of news organizations, who point out that it’s difficult to report on this topic when the companies that receive these warrants are legally barred from disclosing any information about them — especially when that gag order extends indefinitely.
Argues the brief, “The government’s widespread use of these gag orders cuts off the flow of news at its source and undermines three core democratic principles: the rights of the press and the public to receive newsworthy information from a willing speaker; public scrutiny of the criminal justice system; and the freedom of the press to engage in newsgathering and protect private conversations with confidential sources.”
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