Judge green lights Microsoft vs Uncle Sam gag order case

Indefinite injunctions trouble travel ban judge

Microsoft is clear to sue the US government for gagging the company from telling users when their data has been accessed by the State. The lawsuit, filed last April, jumped another legal hurdle this week – thanks to the Washington judge who also battered President Trump's executive order on travel.

It's Microsoft's fourth legal broadside against the US government on data protection rights for users of cloud services. Microsoft argues that the laws purportedly protecting customers privacy are now outdated and ineffective, and need to be modernised if the public is to trust the cloud. The best known of these outside the US is the "Dublin Warrant" or "Irish Warrant" case, which challenges the right of governments to access data stored on servers outside the USA. That resulted in a victory last July and was upheld last month. Far more European citizen's data was affected by the Irish Warrant case than by the better known Schrems "Safe Harbour" case, as most of the data processing on Facebook, for example, takes place in its Irish centres.

The Department of Justice had attempted to quash Microsoft's legal challenge to a portion of the Electronic Communications Privacy Act, which allows courts to keep government data slurps of a citizen's data secret. In practice, this means a service provider does not tell a user when their data has been accessed by the State under a warrant.

Microsoft says it has received 2,576 gagging orders (as of last April), and two thirds of those have no expiry date.

Microsoft argues this is unconstitutional on two grounds breaching the First (right to speech) and Fourth (unlawful search and seizure) Amendments. Judge James Robart, who achieved global fame this week by freezing Donald Trump's executive order restricting travel, supported [PDF] Microsoft's right to proceed with the case on a First Amendment argument. He rejected Microsoft's assertion that the case should also proceed because of Fourth Amendment issues, arguing that Microsoft cannot sue on their behalf. But that doesn't matter, the case can proceed.

Brad Smith, Microsoft's chief legal counsel, said that the company is "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". ®

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