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Microsoft v. DOJ: Court Rules Microsoft May Challenge Constitutionality of SCA Gag Orders

Commentary First Amendment Fourth Amendment

Microsoft Corp. v. U.S. Department of Justice, 16-cv-00538 (W.D.Wash., Feb. 08, 2017). Order (hosted by Politico).

On February 8, 2017, U.S. District Judge James Robart ruled that Microsoft may move forward with its challenge to the constitutionality of §§ 2703 and 2705(b) of the Stored Communications Act (“SCA”), 18. U.S.C. §§2701–2712. Those provisions of the SCA allow the government to serve warrants to access emails and other information stored on remote servers while preventing the server owners from informing their customers that the data had been requested. Microsoft filed a suit against the U.S. Department of Justice (“DOJ”) in April 2016, arguing that these sections of the SCA violated the company’s right to free speech guaranteed by the First Amendment and also their customers’ Fourth Amendment rights against unlawful searches and seizures.

Microsoft claimed in its initial and amended complaint that Section 2705(b) and Section 2703, as applicable, are unconstitutional both facially and as applied to Microsoft and its customers.  In response, the government filed a motion to dismiss Microsoft’s complaint for lack of standing and failure to state a claim. Robart allowed Microsoft’s First Amendment argument but blocked its Fourth Amendment claim. 

Microsoft argued that the prior restraints on speech authorized by the statute were overly broad. The company pointed out that there are no limits on the duration of secrecy orders and that orders are granted as long as there is “reason to believe” secrecy is necessary to avoid jeopardizing the investigation. Therefore, Microsoft claimed, the provision is not narrowly tailored to promote the government’s interest in the secrecy order at hand. The district court found that Microsoft’s alleged injury was sufficient for standing, and that the First Amendment claims were “reasonable” enough to survive the motion to dismiss.

Microsoft’s Fourth Amendment claim rested on the argument that constitutional protections against unreasonable searches and seizures should not depend on the technological medium on which individuals choose to store their information. The company analogized searching a company’s server for emails to searching a person’s home for letters in a drawer, and claimed that the right for individuals to know when the government searches property is the same in both instances. However, the government argued that the company could not assert Fourth Amendment protection on behalf of injured customers, which was accepted by the district court.

The final sentences of the opinion did provide some hope for the Fourth Amendment claim, stating that although the court’s conclusion was “the product of established and binding precedent,” the precedent sets up a “conundrum,” which might be “more properly left to higher courts.”

In the February ruling, Judge Robart noted that public concern over government surveillance aided by service providers is growing, as cloud storage increases in popularity. Indeed, several amicus briefs were filed along with Microsoft’s suit against the DOJ, and commentators, such as Gizmodo expressed excitement over the continuation of the case. 

Daisy is a 1L student at Harvard Law School.