Federal judge rules Microsoft can challenge constitutionality of government gag orders News
Federal judge rules Microsoft can challenge constitutionality of government gag orders

A judge for the US District Court for the Western District of Washington [official website] ruled [opinion] Wednesday that Microsoft can pursue its legal challenge that government gag orders are unconstitutional. Microsoft brought suit in April of last year alleging that sections 2705(b) and 2703 of the Stored Communications Act (SCA) [text], which governs the government’s access to electronic information stored in third party computers, are unconstitutional under the First and Fourth Amendments [text]. Section 2703 authorizes the government to acquire a subscriber’s information from a service provider when the subscriber is a “target of the government’s information request. Section 2705 explains when the government may withhold notice to subscribers that their information was obtained from a service provider. Section 2705(b) then authorizes a gag order prohibiting a service provider from notifying the subscriber their information was obtained. Microsoft claims that these sections combined “absolves the government of the obligation to give notice to a customer whose content it obtains by warrant, without regard to the circumstances of the particular case.” Microsoft also alleges that the gag orders that prevent it from telling customers of the government’s demands for their information disrupts business-consumer relations. Microsoft alleges that federal courts have issued more than 3,250 gag orders over a 20-month period, ending in May 2016, with nearly two-thirds of those orders being enforceable for an indefinite length of time.

The intersection between technology and privacy continues to raise important questions. In April the US Court of Appeals for the Sixth Circuit ruled [JURIST report] that obtaining phone location records without a warrant was not a violation of the Fourth Amendment. November 2015 the US Supreme Court rejected a case [JURIST report] to determine whether it is necessary to obtain a search warrant when law enforcement requests access to cell phone location data. In October of the same year, California Governor Jerry Brown signed into law [JURIST report] the California Electronic Communications Act, a law that many are touting as a substantial step forward for digital privacy and protecting users’ rights. The law, which was approved alongside more than 10 other bills, bars any state’s law enforcement agency or other investigative entity from requesting sensitive metadata from persons or businesses without a warrant. That same month European Court of Justice ruled [JURIST report] that EU user data transferred to the US by various technology companies is not sufficiently protected.

THIS DAY @ LAW

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