25Jan 2017

Microsoft Asserts Clients’ Rights in FBI E-Mail Searches Fight



Microsoft Corp.’s effort to halt the FBI’s so-called sneak-and-peek searches of e-mails may ride on whether it’s allowed to defend its customers’ constitutional rights.

The judge who will decide whether the case can go ahead told the company’s lawyers to be ready in court Monday to address earlier rulings that undercut their arguments. At stake is half of Microsoft’s case to block the U.S. from secretly accessing customer data stored in the cloud, including e-mail.

Microsoft drew support from tech leaders including Apple Inc., Google and Amazon.com Inc. when it sued the U.S. Justice Department in April. They say the very future of mobile and cloud computing is at risk if customers can’t trust that their data will remain private. The federal law allowing searches goes “far beyond any necessary limits” and infringes users’ Fourth Amendment rights against unlawful search and seizure, they contend.

The Justice Department argues it needs such digital tools to help fight increasingly sophisticated criminals and terrorists who are savvy at using technology to communicate and hide their tracks. Disclosing the searches would undermine investigations and put Americans at risk, they argue. A decision for the U.S. would give an early victory to President Donald Trump, who said during his campaign that he would compel technology companies to cooperate.

The case may never reach that point unless Microsoft wins the argument that it has the ability to sue — or standing — to protect customer privacy.


Rights-case Barrier

“Standing has been a barrier in cases that seek to vindicate people’s privacy rights,” said Jennifer Granick, a Stanford Law School professor. “It’s a serious issue in conducting constitutional litigation, and this case is no different.”

Four court decisions listed by U.S. District Judge James Robart in Seattle all reached the same conclusion — Fourth Amendment protections can only be cited by individuals, and not vicariously by third parties. The most recent was a 2014 U.S. Supreme Court ruling that the family of a driver who was shot and killed by police after a high-speed chase couldn’t invoke that right on his behalf related to a lawsuit over his death.

Microsoft’s lawyers may have anticipated the Fourth Amendment challenge in their complaint, stating that the government’s silent searches of user data have directly injured it by “eroding the customer trust” in the company.

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

Microsoft said when it filed its lawsuit that federal courts had issued almost 2,600 secrecy orders barring it from disclosing government warrants for access to private e-mail accounts. It said more than two-thirds of those orders have no fixed end date, meaning the company can never tell customers about them, even after an investigation is completed.


Free Speech

The Redmond, Washington-based company concedes 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 statute is too broad and sets too low of a standard for secrecy, Microsoft contends, arguing regarding the other half of its case that its own free-speech rights are being violated by the orders.

The Electronic Frontier Foundation, a privacy group supporting Microsoft in the case, fears a ruling that the company can’t sue could mean no one will ever have the right to file a data privacy lawsuit under the Fourth Amendment. The people whose privacy might be violated will never find out about the searches, said Andrew Crocker, a lawyer for the group.

“We obviously think that providers should be able to raise the rights of their customers,” Crocker said. “Otherwise you’re cutting customers out of the equation when the government comes to companies with these secret gag orders.”

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