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Amazon, Apple and Alphabet’s Google subsidiary have filed friend-of-the-court briefs supporting Microsoft’s stance on a lawsuit filed against the U.S. Department of Justice earlier this year.
On April 14, Microsoft filed its suit against the U.S. government agency, arguing that a statute of the Electronic Communications Privacy Act violates both the First and Fourth Amendments and is unconstitutional. The statute, Section 2705(b), provides courts with so-called secrecy orders that prevents service providers from disclosing when the government is seeking customer data.
Microsoft asserts that such gag orders violate the Fourth Amendment by not informing individuals that their property has been searched or seized by the government. In addition, the company said the law violates its own First Amendment right to free speech.
“Over the past 18 months, the U.S. government has required that we maintain secrecy regarding 2,576 legal demands, effectively silencing Microsoft from speaking to customers about warrants or other legal process seeking their data,” stated Brad Smith, Microsoft’s top lawyer, in an April 14 announcement. More than two-thirds of those orders were open-ended, with no end date attached.
Seeking to end the practice of keeping customers in the dark when the U.S. government requests their data, Microsoft kicked off its lawsuit filed in the U.S. Western District Court of Seattle. And just before the Sept. 2 deadline to submit amicus curiae briefs, several powerful and influential organizations lined up to express their support.
Microsoft’s allies include rivals Amazon, Apple and Google, Reuters reported. Trade organizations including the U.S. Chamber of Commerce, the National Association of Manufacturers and the National Newspaper Association have also filed friend-of-the-court briefs. They were joined by BP America, Delta Air Lines, Eli Lilly and Co., Fox News and The Washington Post.
Mozilla’s chief legal and business officer, Denelle Dixon-Thayer, said her company had yet to be served a gag order. Nonetheless, Mozilla’s commitment to transparency motivated the open-source software maker to file an amicus brief.
“When requesting user data, these gag orders are sometimes issued without the government demonstrating why the gag order is necessary. Worse yet, the government often issues indefinite orders that prevent companies from notifying users even years later, long after everyone would agree the gag order is no longer needed,” wrote Dixon-Thayer in a Sept. 2 blog post.
The Electronic Frontier Foundation (EFF), along with Access Now and New America’s Open Technology Institute, also filed an amicus brief, arguing that information stored digitally and often on the servers of third-party cloud providers, is entitled to the same protections as paper documents.
“When people kept personal letters in a desk drawer at home, they knew if that information was about to be searched because the police had to knock on their door and show a warrant,” said EFF staff attorney Sophia Cope in a statement. “The fact that today our private emails are kept on a server maintained by an Internet company doesn’t change the government’s obligations under the Fourth Amendment.”