Photographer: David Ryder/Bloomberg

Microsoft Allowed to Sue U.S. Government Over E-mail Surveillance

  • Federal judge allows company’s free-speech claims to go ahead
  • Tech firm loses argument snooping is unlawful property seizure

Microsoft Corp. persuaded a judge not to let the U.S. government out of a lawsuit alleging the company’s free-speech rights are violated by a law that blocks it from alerting users to the clandestine interception of their e-mails.

The judge said Microsoft has at least made a plausible argument that federal law muzzles its right to speak about government investigations, while not ruling on the merits of the case.

"The public debate has intensified as people increasingly store their information in the cloud and on devices with significant storage capacity,” U.S. District Judge James Robart in Seattle said in Thursday’s ruling. “Government surveillance aided by service providers creates unique considerations because of the vast amount of data service providers have about their customers."

Robart rejected the tech giant’s argument that the so-called sneak-and-peek searches amount to an unlawful search and seizure of property. Former Attorney General Loretta Lynch had argued that federal law allows the Justice Department to obtain electronic communications without disclosure of a specific warrant if it would endanger an individual or an investigation.

Robart, a 2004 appointee of Republican President George W. Bush, has already riled President Donald Trump this month by halting a temporary ban on visitors, immigrants and refugees from seven mostly Muslim countries. Trump labeled Robart a “so-called judge” and called his ruling in that case “ridiculous.”

Escalating Feud

Microsoft sued the government in April, escalating a feud with the U.S. over customer privacy and the company’s ability to disclose what it’s asked to turn over to investigators.

Redmond, Washington-based Microsoft drew support in the case from tech leaders including Apple Inc., Google and Amazon.com Inc., which argued the very future of mobile and cloud computing is at stake if customers can’t trust that their data will remain private. They said the federal law allowing the searches goes “far beyond any necessary limits” and infringes users’ fundamental rights.

“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.

A Justice Department spokeswoman declined to comment on the ruling while the department reviews it.

Read more: Microsoft Claims Clients’ Rights in FBI E-Mail Search Fight

The Justice Department and Lynch defended the searches, saying they need digital tools to help fight increasingly sophisticated criminals and terrorists who are savvy at using technology to communicate and hide their tracks.

Fourth Amendment

In the portion of Thursday’s ruling that sided with the government, the judge said he could not reconcile the company’s attempt to assert the Fourth Amendment protection against invasive searches on behalf of its customers with earlier court decisions. Other courts have found that such rights can only be asserted by individuals, and not vicariously by third parties, he said.

Still, Robart recognized that the law used by the government to block Microsoft from informing users about searches “means customers whose accounts have been accessed by the government may never know of the search.”

Secrecy orders on government warrants for access to private e-mail accounts generally prohibit Microsoft from telling customers about the requests for lengthy or even unlimited periods, the company said when it sued. At the time, federal courts had issued almost 2,600 secrecy orders to Microsoft alone, and more than two-thirds had no fixed end date. In those cases, the company can never tell customers about government searches, even after an investigation is completed.

The industry’s push against government intrusion into their customers’ private information began in the wake of Edward Snowden’s 2013 disclosures about covert-data collection that put internet companies on the defensive.

Microsoft concedes that there may be times when the government is justified in seeking a gag order to prevent customers under investigation from tampering with evidence or harming another person. Still, the company contends the statute authorizing the gag orders is too broad and sets too low of a standard for secrecy.

The case is Microsoft Corp. v. U.S. Department of Justice, 16-cv-00538, U.S. District Court, Western District of Washington (Seattle).

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