Microsoft Corp. v. United States

Court: U.S. Court of Appeals for the Second Circuit

Date Filed: Dec. 21, 2020

Background: Last year, Microsoft challenged a government order under the Stored Communications Act prohibiting the company from telling anyone that it had received a search warrant for the email accounts of two employees of a multinational company, which is a Microsoft customer. Microsoft asked the court to allow it to notify at least one of the customer company’s officials, arguing that doing so would not compromise the government’s investigation.

A magistrate judge denied Microsoft’s request. And in November, a federal judge from the U.S. District Court for the Eastern District of New York upheld the “gag order.”

Microsoft then appealed to the U.S. Court of Appeals for the Second Circuit.

Our Position: The Second Circuit should hold that courts must apply strict scrutiny to government requests for § 2705(b) non-disclosure orders.

• Journalists must be able to protect the confidentiality of reporting materials in the cloud, today’s virtual newsroom.
• Strict scrutiny of applications for § 2705(b) non-disclosure orders is necessary to protect the critical First Amendment interests raised by searches of the virtual newsroom.

Bob Loeb and Katherine Munyan at Orrick, Herrington & Sutcliffe LLP served as the Reporters Committee’s counsel on this brief.

Quote: “Without demanding judicial scrutiny of the government’s non-disclosure requests, there is a serious risk that government searches will have a chilling effect on reporter-source communications and that the flow of vital information to the public will be substantially impaired.”

Related: The Reporters Committee and a coalition of 21 media organizations filed a friend-of-the-court brief in this case with the U.S. District Court for the Eastern District of New York. In the brief, Reporters Committee attorneys argued that nondisclosure orders linked to government demands to third party vendors like Microsoft for online data or communications can obstruct newsgathering, chill reporter-source relationships and threaten the free flow of information to the public.