Microsoft Challenges Data Warrant Gagging Order


Microsoft is suing the Department of Justice to demand the right to tell users when it gives officials access to personal data. The company says forcing it to keep such searches a secret is a double constitutional violation.

The case centers on the Electronic Communications Privacy Act, which dates back to 1986 and extends the existing rights and restrictions on government wiretaps to cover electronic communications.

Controversially, the law doesn’t just allow for warrants that force communications providers to give the government access to a customer’s data such as emails or online activity. It also provides for courts to add a stipulation that means the communications provider can’t then tell the customer concerned about the warrant or that their data has been made available.

In the government’s view, such stipulations are necessary as they prevent a suspect being tipped off about an investigation. Microsoft’s counter is that the situation should be compared with police searches of physical data such as the contents of a filing cabinet in the home. In those cases a warrant-based search would usually involve the suspect becoming aware of the search, leaving investigators to decide if the benefits of the search outweighed the suspect being tipped off.

Microsoft says it believes the number of warrants sought and issued for electronic searches is disproportionately higher than the number for physical searches, something it attributes to the option for secrecy. Of course, by definition it’s impossible to know if that’s true across all communications providers.

It also says such gag orders are often left without an expiry date, making them effectively indefinite, something Microsoft argues is excessive given that the secrecy should cover a specific risk.

The company is challenging the law on two constitutional points. It says indefinite gagging orders are a breach of the First Amendment because it has the right to tell the customers a fact (namely the existence of the search) “as soon as secrecy is no longer required.”

It also argues that gagging orders inherently violate the Fourth Amendment right for people to know their property is being searched.

The Wall Street Journal quotes a law professor who says the case may boil down to whether data stored “privately” on Microsoft servers should be likened to physical documents handed over to a third party, or to documents stored in the customers home.

One Response to Microsoft Challenges Data Warrant Gagging Order

  1. Here is the problem with that. I’m conducting an investigation into say, child sexual exploitation, with an unknown suspect. I subpoena Microsoft, Google and Facebook. Google replies to the subpoena in 48 hours and notifies the suspect of the court order. Perhaps the information Google provides is not enough to ID the suspect. Now Facebook and Microsoft drag their feet and don’t provide the information for two weeks. Now you have identified your suspect, but everything he had was deleted two weeks prior because he was notified of the court order before he could even be identified.

    In order for what they are asking to work, all online companies would be required to be able to return the information requested immediately, not two weeks later.

    Based on their example above, this would be the same as requesting a search warrant for only one cabinet. If I don’t find what I’m looking for, I’ll go get another warrant in a couple weeks for another cabinet.

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