“WE APPRECIATE THAT there are times when secrecy around a government warrant is needed,” Microsoft President Brad Smith wrote in a blog post on Thursday. “But based on the many secrecy orders we have received, we question whether these orders are grounded in specific facts that truly demand secrecy. To the contrary, it appears that the issuance of secrecy orders has become too routine.”
With those words, Smith announced that Microsoft was suing the Department of Justice for the right to inform its customers when the government is reading their emails.
The last big fight between the Justice Department and Silicon Valley was started by law enforcement, when the FBI demanded that Apple unlock a phone used by San Bernardino killer Syed Rizwan Farook.
This time, Microsoft is going on the offensive. The move is welcomed by privacy activists as a step forward for transparency — though it’s also for business reasons.
Secret government searches are eroding people’s trust in the cloud, Smith wrote — including large and small businesses now keeping massive amounts of records online. “The transition to the cloud does not alter people’s expectations of privacy and should not alter the fundamental constitutional requirement that the government must — with few exceptions — give notice when it searches and seizes private information or communications,” he wrote.
According to the complaint, Microsoft received 5,624 federal demands for customer information or data in the past 18 months. Almost half — 2,576 — came with gag orders, and almost half of those — 1,752 — had “no fixed end date” by which Microsoft would no longer be sworn to secrecy.
These requests, though signed off on by a judge, qualify as unconstitutional searches, the attorneys argue. It “violates both the Fourth Amendment, which affords people and businesses the right to know if the government searches or seizes their property, and the First Amendment, which enshrines Microsoft’s rights to talk to its customers and to discuss how the government conducts its investigations — subject only to restraints narrowly tailored to serve compelling government interests,” they wrote.
A divided Fourth Circuit has ruled, in United States v. Graham, that “the government conducts a search under the Fourth Amendment when it obtains and inspects a cell phone user’s historical [cell-site location information] for an extended period of time” and that obtaining such records requires a warrant.
The new case creates multiple circuit splits, which may lead to Supreme Court review. Specifically, the decision creates a clear circuit split with the Fifth and Eleventh Circuits on whether acquiring cell-site records is a search. It also creates an additional clear circuit split with the Eleventh Circuit on whether, if cell-site records are protected, a warrant is required. Finally, it also appears to deepen an existing split between the Fifth and Third Circuits on whether the Stored Communications Act allows the government to choose whether to obtain an intermediate court order or a warrant for cell-site records.
This post will cover the reasoning of the new case in detail.