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Update: Microsoft Case Against DOJ Allowed to Proceed

Update: Microsoft Case Against DOJ Allowed to Proceed

The technological privacy of clients, customers, and the citizenry as a whole is a top concern for many leading technology companies, who often lead the policy debate on behalf of their end users and justice for all. One such example of this is the evolving case of Microsoft Corp. v. U.S. Department of Justice, 16-cv-00538, which was filed last April, and allowed to proceed in part on February 8, 2017.

Background: Microsoft v. United States Department of Justice, et al

In October, Wipfli joined Microsoft and over eighty other companies, press associations, and legal groups, filing an amicus curie brief to demonstrate its commitment to fighting for consumer and client protections in the cloud.

“Being a trusted advisor of cloud services, our clients rely on Wipfli to be their proponent in these matters,” explains Ryan Risley, Director and Chief Technology Officer in Wipfli’s Technology Consulting Practice. “We are pleased to contribute to this important brief as a strong advocate for digital privacy for the future.”

The law as it stands currently was not designed with today’s technology in mind, and as such allows the government to take liberties in investigations that violate rights of US Citizens and the companies that serve them.

This means two things:

  • A government agency, without charging you with a crime, can demand that companies like Microsoft, Google, Mozilla, or Dropbox turn over information they have on you.
  • By placing a gag order on those companies, it means that companies can’t warn you that a government agency has investigated you. Most of these gag orders have no end date.

For full background, including the list of entities filing amicus briefs and more, see the Wipfli/Brittenford post, Wipfli Joins Microsoft in Suit Against DOJ for Misuse of ECPA.

Update: Judge Declines to Uphold Fourth Amendment Claims, Allows First Amendment Claims to Proceed

In a busy week for District Judge James Robart, the Western Washington District Judge who among other high-profile cases, allowed part of Microsoft’s case against the Department of Justice to proceed.

Robart Grants Microsoft’s First Amendment Claims

In Microsoft v. United States Department of Justice, Microsoft argued that Section 2705(b) (gag orders—part of the Electronic Communications Privacy Act) 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 contended 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.


Judge Robart Denys Microsoft’s Fourth Amendment Claims

Unfortunately, only part of the case will proceed. On January 23, 2017, Microsoft filed a supplemental brief to allow itself to argue the merits of the law with respect to the Fourth Amendment on behalf of its customers.

As many of these searches are completed under a cloak of secrecy (Microsoft can’t inform its customers that the government has intruded on their privacy), Microsoft argued that it should be allowed, under “special circumstances,” to be able to vicariously defend its customers’ Fourth Amendment rights.

On this issue, Judge Robart sided with the Department of Justice, who argued that Microsoft does not have a right to vicariously defend its customers’ rights, citing Rakas v. Illinois, 439 U.S. 21 128, 133 (1978), and Alderman v. United States, 394 U.S. 165, 174 (1969), both involving criminal defendants who sought to exclude relevant evidence because it was obtained in violation of another person’s Fourth Amendment Rights.


While this case is one of many in the escalating feud between technology companies and the Government, the decision allowing Microsoft Corp. v. U.S. Department of Justice, 16-cv-00538 to proceed is important for the rights of American citizens, cloud providers, and the continued trust that consumers place in technology companies like Microsoft, Google, and Wipfli.

“We’re pleased this ruling enables our case to move forward toward a reasonable solution that works for law enforcement and ensures secrecy is used only when necessary,” Brad Smith, Microsoft’s chief legal officer, said in a statement.

ECPA, as it currently stands, was not designed with the current technological landscape in mind, and government agencies of all sizes and scopes have exploited the law and gag order provision to spy on United States citizens. If this case as it stands now goes in Microsoft’s favor, the company will be able to at least warn its customers about many of these searches (so that customers can defend their own Fourth Amendment rights) and put more pressure on the government to justify any gag order it issues.

We look forward to sharing with you any updates to this case and for more information, we recommend reading Gagged, Sealed & Delivered: Reforming ECPA’s Secret Docket, Bloomberg’s coverage of Microsoft’s Suit against the DOJ, and Judge Robart’s 47-Page decision.

For more information about your rights as a digital citizen, head to DigitalDueProcess.org, and for more on policies designed to help technology companies help their customers, head to VoicesForInnovation.org.


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