Microsoft Vs. U.S. Government: Company Wins The Right To Sue On Behalf Of Customers Over Secrecy Orders

In a victory for technology companies and their customers, a federal judge in Seattle has ruled Microsoft has the right to sue the Department of Justice on behalf of its customers over the government’s practice of placing a gag order on companies when requesting customer data.

The case, which started more than one year ago, was filed by Microsoft to challenge the government’s ability to request access to customer data while preventing the company from informing customers.

When an agency asks for access to user data and communications, it often places a gag order on the company it’s getting the data from. The order prevents the company from informing the customer subjected to the data search of what is happening. Often times, those gag orders had no end date, meaning the customer will never learn the government accessed their data.

Microsoft challenged the secrecy orders issued by the government and argued the First and Fourth Amendment rights of its customers were being violated. When Microsoft filed its suit against the government, it said it had received 2,576 gag orders over demands for data—including 1,752, or 68 percent, that had no end date.

The Department of Justice countered the claim by insisting Microsoft has not suffered any "concrete injury" by not disclosing information to its customers and that Microsoft can’t bring a Fourth Amendment claim on behalf of others.

United States District Judge James Robart ruled largely in the favor of Microsoft. He allowed the Fourth Amendment question to be dropped but wrote in his ruling, “In at least some circumstances, however, the Government’s interest in keeping investigations secret dissipates after an investigation concludes and at that point, First Amendment rights may outweigh the Government interest in secrecy."

In essence, Robart’s ruling allows Microsoft to continue forward with its case, granting the company the right to sue on behalf of its customers—customers who would never know they have reason to sue because Microsoft is prevented from informing them.

“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 president and chief legal officer, told International Business Times.

If the name of Justice Robart is familiar, it’s because the judge’s recent ruling have placed him in the spotlight. He is the same judge who placed a nationwide, temporary restraining order on President Donald Trump’s executive action temporarily banning travel from seven majority-Muslim countries and indefinitely barring refugees from Syria from entering the U.S.

Microsoft received support from a number of other tech companies regarding their case, including Apple, Google, Twitter and Snapchat. The companies have likely also been given gag orders during government requests for data.

The court case marks a continuation of attempts to clarify the text of the 1986 Electronic Communications Privacy Act (ECPA), which has been used by authorities to gather data without a warrant. Congress recently passed the Email Privacy Act, which would update the text of the law to require agencies get a warrant before accessing a person’s data or digital communications.