Court Says Microsoft Can Sue Government Over First Amendment-Violating Gag Orders

from the prior-restraint,-but-for-forever-wars dept

One of several service providers to sue the government over its gag orders, Microsoft received some good news from a federal judge in its lawsuit against the DOJ. Microsoft is challenging gag orders attached to demands for data and communications, which the DOJ orders is statutorily-supported by the Electronic Communications Privacy Act (ECPA) and, if not, by supposed national security concerns.

As Microsoft pointed out in its lawsuit, the government rarely justifies its secrecy demands and frequently issues gag orders with no endpoint. Microsoft received nearly 2,800 of these gag-ordered requests over an 18-month period, with over two-thirds of them demanding silence indefinitely.

The good news is a federal judge has (partially) waved away the DOJ's motion to dismiss and will allow Microsoft to proceed with its lawsuit, as Politico's Josh Gerstein reports.

U.S, District Court Judge James Robart issued a 47-page opinion [PDF] Thursday allowing Microsoft to proceed with a lawsuit claiming a First Amendment violation when the government restricts internet providers from notifying subscribers about requests for their data.

"The orders at issue here are more analogous to permanent injunctions preventing speech from taking place before it occurs," Robart wrote. "The court concludes that Microsoft has alleged sufficient facts that when taken as true state a claim that certain provisions of Section 2705(b) fail strict scrutiny review and violate the First Amendment."

Section 2705(b) refers to the Stored Communications Act, which allows the government demand notice be withheld under certain circumstances, unless otherwise forbidden to by another section of the same law (Section 2703). Microsoft is looking to have both sections declared unconstitutional, especially given the severe upheaval the communications landscape has undergone in the thirty years since the law was passed.

Microsoft contends that Section 2705(b) is unconstitutional facially and as applied because it violates the First Amendment right of a business to “talk to [the business’s] customers and to discuss how the government conducts its investigations.” Specifically, Microsoft contends that Section 2705(b) is overbroad, imposes impermissible prior restraints on speech, imposes impermissible content-based restrictions on speech, and improperly inhibits the public’s right to access search warrants. Microsoft also alleges that Sections 2705(b) and 2703 are unconstitutional facially and as applied because they violate the Fourth Amendment right of “people and businesses . . . to know if the government searches or seizes their property.”

Microsoft contends that the statutes are facially invalid because they allow the government to (1) forgo notifying individuals of searches and seizures, and (2) obtain secrecy orders that “prohibit providers from telling customers when the government has accessed their private information” without constitutionally sufficient proof and without sufficient tailoring.

The DOJ argued Microsoft didn't have standing to bring this complaint, as its Fourth Amendment rights aren't implicated. Only its customers' are. But the court points out that, if nothing else, the company does have standing to pursue its claims of First Amendment violations.

The court finds that Microsoft has sufficiently alleged an injury-in-fact and a likelihood of future injury. Microsoft alleges “an invasion of” its “legally protected interest” in speaking about government investigations due to indefinite nondisclosure orders issued pursuant to Section 2705(b)... The court concludes that Section 2705(b) orders that indefinitely prevent Microsoft from speaking about government investigations implicate Microsoft’s First Amendment rights.

The court goes on to point out that frequent use of indefinite gag orders certainly appears to be unconstitutional, given that they act as a "forever" application of prior restraint.

The court also concludes that Microsoft's assertions of further civil injuries aren't speculative, as the DOJ claimed. Judge Robart points to the government's own actions as evidence of continued harm to Microsoft's civil liberties.

Microsoft bolsters its prediction by alleging that over a 20-month period preceding this lawsuit, the Government sought and obtained 3,250 orders–at least 4504 of which accompanied search warrants—that contained indefinite nondisclosure provisions. In addition, Microsoft alleges that in this District alone, it has received at least 63 such orders since September 2014. Because these orders have been frequent and issued recently, the Government will likely continue to seek and obtain them. Accordingly, Microsoft’s “fears” of similar injuries in the future are not “merely speculative.”

Unfortunately, the court won't grant Microsoft the standing to represent its users for Fourth Amendment purposes. Judge Robart points to a whole bunch of precedential decisions declaring otherwise, but at least takes a bit of time to discuss how denying Microsoft this opportunity likely means denying several of its users any sort of redress.

The court acknowledges the difficult situation this doctrine creates for customers subject to government searches and seizures under Sections 2703 and 2705(b). As Microsoft alleges, the indefinite nondisclosure orders allowed under Section 2705(b) mean that some customers may never know that the government has obtained information in which those customers have a reasonable expectation of privacy... For this reason, some of Microsoft’s customers will be practically unable to vindicate their own Fourth Amendment rights.

Expect the government to make heavy use of its "national security" mantra as it defends itself in this case. Those magic words have allowed all sorts of civil liberties violations in the past and still tend to move courts to the government's side when deployed in DOJ motions. If the court does side with Microsoft when this is all said and done, it's likely the remedy won't be a restriction on gag orders, but more likely something analogous to the rules that now govern National Security Letters -- periodic review of gag orders by the government and better avenues for raising challenges for companies affected. Then again, the court could simply punt it back to legislators and push them to fix the 30-year-old law whose dubious constitutionality is the source of numerous lawsuits against the federal government.


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  • identicon
    SpaceLifeForm, 10 Feb 2017 @ 8:42am

    Funny numbers

    obtained 3,250 orders–at least 4504 of which accompanied search warrants

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Feb 2017 @ 9:06am

    huh?

    "The court goes on to point out that frequent use of indefinite gag orders certainly appears to be unconstitutional, given that they act as a "forever" application of prior restraint."

    Any use of gag orders, regardless of length, are unconstitutional as it directly suppresses the 1st Amendment which is obviously the entire point of it!

    Nice to see some push back even though the Judge is completely leaving plenty of room for unconstitutional law or activity to remain.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Feb 2017 @ 10:08am

      Re: huh?

      Not really. Near v. Minnesota is the notable case on the issue, which clearly allows prior restraint for "exceptional circumstances." Specifically mentioned were national security and obscene material (it's always fun looking up old court cases, they were really worried about obscenity).

      It's also very common for courts to issue gag orders prohibiting any member of the prosecution or defense from talking to the media about the case.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 10 Feb 2017 @ 1:48pm

        Re: Re: huh?

        Yes Really, there is no shortage of stupid judges and stupid people like you that cannot read mutherfucking english.

        The 1st does not state that "exceptional circumstances" are an exception.

        "It's also very common for courts to issue gag orders prohibiting any member of the prosecution or defense from talking to the media about the case."

        The First Amendment is specifically written to prevent this VERY THING!

        I just goes to prove that not only do you NOT have any rights, you are too fucking stupid to even understand them and by proxy, do not deserve them, but regardless.. HAVE THEM!

        There is a reason every nation gets the government it deserves!

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Feb 2017 @ 9:15am

    isn't same microsoft which allowed nsa to put backdoors since windows 95 in exchange for os monopoly?

    and which later sabotaged linux to protect their crappy windows?

    reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 10 Feb 2017 @ 9:26am

      Re:

      os monopoly?

      Citation? When did Microsoft ever have anything remotely like an OS monopoly?

      which later sabotaged Linux

      Citation? (And no, mass-licencing deals with hardware vendors don't count. Those are common in any industry.)

      reply to this | link to this | view in chronology ]

      • identicon
        Thad, 10 Feb 2017 @ 4:18pm

        Re: Re:

        Citation? When did Microsoft ever have anything remotely like an OS monopoly?

        From 1981 until 2007?

        Here are some numbers from Net Applications for '06 and '07:

        http://cybernetnews.com/os-browser-market-share-history/

        And here's a Forbes article stating MS had 97% of the market in '00:

        http://www.forbes.com/sites/timworstall/2012/12/13/microsofts-market-share-drops-from-97-to-20- in-just-over-a-decade/#3fc51135763f

        which later sabotaged Linux

        Citation?

        http://www.catb.org/~esr/halloween/

        http://www.computerworld.com/article/2563673/linux/update--mic rosoft-behind--50m-sco-investment.html

        And no, mass-licencing deals with hardware vendors don't count.

        The judge in US v Microsoft didn't seem to buy your novel "doesn't count" legal argument ( http://www.webcitation.org/query?id=1298665666970544 ), but hey, what would he know?

        ...oh, I see, you spell "license" with a "c". That explains your confusion about Microsoft's market share: you guys had Amiga over there.

        reply to this | link to this | view in chronology ]

        • icon
          Roger Strong (profile), 10 Feb 2017 @ 7:52pm

          Re: Re: Re:

          At all times there were excellent and widely available browser and OS alternatives. It wasn't a monopoly. Likewise, the so-called "sabotage" was normal competitive behavior in a normal market.

          The problem was that it wasn't a normal market. Microsoft was too successful. With a very large OS market share, it couldn't and shouldn't use normal competitive behavior. It needed to dial it back.

          It reminds me of the NY Times recounting of an early press-release war between Amazon.com and Barnes & Noble:

          In a press release Amazon.com called themselves an "independent bookseller" fighting "goliath." B&N responding with a press release saying, "With a market capitalization of some $7 billion and more than four million customers... your company is now worth more than Barnes & Noble, Borders and all of the independent booksellers combined." Amazon.com then responded with a one word press release: "Oh."

          In the case of Netscape's browser complaint - not getting the insider Windows APIs except in trade for concessions of their own... I don't have too much sympathy given that at the time Netscape had a browser market share similar to Microsoft's OS market share.

          BTW, I'm in North America. We had Amiga here too. More importantly, OS/2, Mac and various desktop Unix flavors. There was no monopoly.

          reply to this | link to this | view in chronology ]

          • identicon
            Thad, 13 Feb 2017 @ 4:14pm

            Re: Re: Re: Re:

            At all times there were excellent and widely available browser and OS alternatives.

            Which were incompatible with pages and documents that had been designed to be read by Microsoft programs. By design.

            https://en.wikipedia.org/wiki/Embrace%2C_extend_and_extinguish

            The problem was that it wasn't a normal market. Microsoft was too successful. With a very large OS market share, it couldn't and shouldn't use normal competitive behavior.

            Deliberately violating standards to lock people into using your product is not "normal competitive behavior". It is the definition of anticompetitive behavior.

            BTW, I'm in North America.

            Then you misspelled "license".

            More importantly, OS/2

            Do you seriously need me to run down the ways in which MS deliberately and unnecessarily broke compatibility with OS/2?

            Mac and various desktop Unix flavors

            With a combined market share of, what, 3%? What's your definition of "monopoly", exactly? What percentage of a market do you believe a vendor have to have before it qualifies?

            reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 11 Feb 2017 @ 4:32am

          Re: Re: Re:

          on a bright side, bill gates throws food scraps from his table to people in africa, while 15yo kid hacks fbi windows servers.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Feb 2017 @ 10:57am

    So they finally finished the script.

    So they've written a script over a couple of scotches, found a judge that will play ball, and now are putting on a kabuki theater to create a predetermined precedent.

    Who'd have thought you could see a free theater at the federal courthouse? Ho hum...

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 10 Feb 2017 @ 6:39pm

    'That's a feature, not a bug' -USG

    The DOJ argued Microsoft didn't have standing to bring this complaint, as its Fourth Amendment rights aren't implicated. Only its customers' are.

    Those of course being the same customers that even the judge admits are kept in the dark thanks to the gag orders, such that the only people with standing regarding fourth amendment violations are incapable of showing standing because the government is deliberately keeping them ignorant of the violations of their rights.

    The company that's aware of the violations isn't allowed to challenge them, and the people who's rights are being violated aren't allowed to know about the violations so that they can challenge them.

    At that point the judge might as well have come out and flatly stated that the fourth only applies when the government feels like it.

    reply to this | link to this | view in chronology ]


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