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Microsoft lawsuit against indefinite gag orders can proceed

A Microsoft lawsuit against the U.S. Department of Justice over indefinite gag orders attached to search warrants can proceed, following a federal judge’s ruling on Thursday.

The tech titan sued last year to end the government’s practice of indefinitely blocking it from informing customers of search warrants for their information. Microsoft alleged that such orders violate its First Amendment frees speech rights and the Fourth Amendment privacy rights of its users.

The Justice Department argued that Microsoft couldn’t bring either of the claims in a motion argued in front of the judge two weeks ago.

Judge James Robart from the U.S. District Court for the Western District of Washington said Microsoft’s First Amendment claims could proceed, but its Fourth Amendment claims could not.

Microsoft said that it was pleased with the ruling. The DOJ did not immediately respond to a request for comment.

“We’re pleased this ruling enables our case to move forward toward a reasonable solution that works for law enforcement and ensures secrecy is used only when necessary,” Microsoft President and Chief Legal Officer Brad Smith said in an emailed statement.

At issue in the case are gag orders allowed by a section of the Electronic Communications Privacy Act, which allows the government to indefinitely prohibit a cloud vendor like Microsoft from telling one of its users about a search warrant for their digital information.

Robart said Microsoft had standing to continue with its argument that the gag orders are an unconstitutional prohibition on its speech. However, because of legal precedent, Microsoft could not assert a Fourth Amendment claim on behalf of its users, the judge said. That decision presents a conundrum, as Robart noted in his opinion.

“As Microsoft alleges, the indefinite nondisclosure orders allowed under [the law] mean that some customers may never know that the government has obtained information in which those customers have a reasonable expectation of privacy,” he wrote.

It’s been a busy month for Robart. He issued a restraining order blocking parts of President Donald Trump’s executive order banning immigration from seven countries with large Muslim populations.

IDG Insider

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