WASHINGTON — Microsoft announced on Oct. 23 that it will drop a lawsuit against the Department of Justice involving government gag-order searches. This comes as a result of the DOJ recently reforming its gag-order policy, limiting the usage of secrecy orders and requiring the setting of end dates for them.
These gag-order searches, which are part of the 1986 Stored Communications Act (SCA), allow the government to access personal cloud data during search warrants without informing the provider or customer.
Microsoft had originally sued the DOJ in April 2016 with the intent to declare the gag-order section of the SCA unconstitutional. Microsoft believed it was restricted from notifying its customers that a government search of their data had taken place. The company further argued that its customers’ First and Fourth Amendment rights were being violated in the process.
The DOJ subsequently requested a dismissal of Microsoft’s case, stating that the company did not have a legal right to argue for its customers’ Fourth Amendment rights. However, U.S. District Judge James Robart sided with Microsoft in February 2017, allowing the case to go to a higher court under the grounds that “First Amendment rights may outweigh the government interest in secrecy.”
The DOJ released a memo Oct. 19th outlining its new gag-order policy, specifically that prosecutors “conduct an individualized and meaningful assessment” for the use of gag orders and to tailor said usage to “include the available facts of the specific case and/or concerns attendant to the particular type of investigation.”
Despite the dropped lawsuit, Microsoft Chief Legal Officer Brad Smith further called for the advancement of the Electronic Communications Privacy Act (ECPA) Modernization Act, specifically its provision to address secrecy orders.
“We [Microsoft] hope Congress will make this positive step forward more permanent by updating outdated laws” writes Smith. “To better protect our digital rights while still enabling law enforcement to do its job.”
Yet this is not Microsoft’s only legal issue involving the SCA, as the company has a pending Supreme Court case involving the government’s ability to force tech companies to hand over data stored outside the U.S. The Associated Press states that “the case also highlights the difficulty that judges face in trying to square decades old laws with new technological developments.”
