“Microsoft has said that it received more than 5,000 federal demands for customer information or data between September 2014 and March 2016. Nearly half of those demands were accompanied by gag orders preventing Microsoft from notifying the affected customers that the government had requested their information. The majority of those gag orders contained no time limit,” the ACLU said in a statement.
Microsoft claims that when they are served demands for user data, the demands are often accompanied by gag-orders with no expiration date. The company believes that the gag-orders violate the First and Fourth Amendments.
“Before the digital age, individuals and businesses stored their most sensitive correspondence and other documents in file cabinets and desk drawers. As computers became prevalent, users moved their materials to local computers and on-premises servers, which continued to remain within the user’s physical possession and control. In both eras, the government had to give notice when it sought private information and communications, except in the rarest of circumstances,” Microsoft pointed out in court documents.
The company argued that individuals and businesses keep documents on remote servers owned by third parties, such as in the cloud, so that they can access correspondence and documents from any device.
“The transition to the cloud does not alter the fundamental constitutional requirement that the government must—with few exceptions—give notice when it searches and seizes the private information or communications of individuals or businesses,” the company stated.
The DOJ argued that Microsoft is not suffering any “concrete injury” by not being able to disclose to their users when the government has requested their personal data, Ars Technica reported. The DoJ also argues that, under current law, the company cannot file a Fourth Amendment claim on behalf of others.
A big aspect of this case will depend on whether Microsoft will be allowed to argue for the constitutional rights of their customers.
