Microsoft advances on challenge to search warrant gag orders

Selina MacLaren | Prior Restraints | News | March 31, 2017

Communications service providers are constantly faced with demands to turn over their customer’s records to law enforcement. But Microsoft found that when it was served with these demands, they were all too often accompanied by gag orders with no ending date, forbidding them to talk about the demand or tell their customer that their records were involved. So the tech giant decided last year to sue the government over those gag orders in federal court in Seattle, and in February, it overcame the first hurdle by beating back the government’s effort to have that part of the case dismissed.

In its complaint, Microsoft challenged parts of a federal law—the Electronic Communications Privacy Act—that allow the government to issue those gag orders. Microsoft argued that the law is unconstitutional in two ways: it restrains Microsoft’s right to speak to its customers in violation of the First Amendment, and it permits the government to illegally search customers’ records in violation of the Fourth Amendment.

The issue of importance to the news media particularly because of concerns about searches of their own records, but also because the public has a right to know about government search warrants. In September, the Reporters Committee for Freedom of the Press, joined by a coalition of 29 other media organizations, submitted an amicus brief opposing the government’s effort to dismiss the lawsuit, arguing that gag orders interfere with the news media’s right to receive information and the public’s right of access to court records, and also threaten the confidentiality of reporter-source relationships.

In February, the court denied the government’s effort to dismiss the case, allowing Microsoft’s First Amendment speech claim to go forward, though it did dismiss the part of the company’s claim based on its customers’ Fourth Amendment rights. The court found that the speech that Microsoft wanted to exercise—that is, telling its customers about government’s searches—was important to the public. In light of the importance to the public of knowing what the government is up to, the court found it problematic that the gag orders could “prevent[ ] speech from taking place before it occurs.” Even though the government argued that the gag orders are necessary to prevent the target of the investigation from finding out that he or she is under investigation, the court did not find this argument persuasive because “Microsoft continues to be restrained from speaking” even after the investigation has ended, when “secrecy is no longer required to satisfy the government’s interest.”

The court also discussed how the public would be affected by the law, noting that Microsoft argued that the law is “so broadly written that it infringes unacceptably on the First Amendment rights of third parties.” The court noted that in the Ninth Circuit, it is an “open” question whether the public has a right of access to certain records related to search warrants after the investigation has ended. The amicus brief had argued that these third-party rights justified access to warrant materials.