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Microsoft Government Privacy The Courts

Microsoft Sues US Justice Department, Asks Court To Declare Secrecy Orders Unconstitutional (geekwire.com) 123

Posted by msmash from the fighting-for-your-rights dept.
Todd Bishop, reporting for GeekWire: Microsoft is suing the U.S. Justice Department, asking a federal judge to declare unconstitutional a provision of U.S. law that lets the government keep Microsoft and other tech companies from informing their customers when investigators seek access to emails and other cloud data. The suit, filed moments ago in U.S. District Court in Seattle, targets Section 2705(b) of the Electronic Communications Privacy Act, which allows the government to seek and obtain secrecy orders preventing companies from letting their customers know when their data is the target of a federal warrant, subpoena or court order. Brad Smith, Microsoft's president and chief legal officer, recently criticized the 30-year-old Electronic Communications Privacy Act as outdated during his testimony in February before the U.S. House Judiciary Committee -- bringing along IBM's first laptop, released the same year, to help illustrate his point.Microsoft argues that these "indefinite gag orders" violate the First Amendment rights to inform customers. Furthermore, the company adds that the law also "flouts" the Fourth Amendment, which requires the government to give a notice to the concerned person when his or her property is being searched or seized. "This is a First Amendment fight that needed to get picked and I'm glad Microsoft picked it. Just as in the real world with physical seizures, secrecy in digital seizures should be the exception and not the rule. Yet as the Microsoft complaint shows, it's receiving thousands of law enforcement gag orders every year and more than two-thirds of them are eternal gags with no end data," said Kevin Bankston, internet freedom advocate and digital rights lawyer. "This is clearly unconstitutional, yet with so many orders per year, it makes sense to strike at the root with a facial challenge to the law rather than try and challenge them all individually. And based on previous similar cases around gag orders in national security cases, I think they'll succeed in striking this overbroad law down."
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Microsoft Sues US Justice Department, Asks Court To Declare Secrecy Orders Unconstitutional More

Microsoft Sues US Justice Department, Asks Court To Declare Secrecy Orders Unconstitutional

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  • About time! (Score:4, Insightful)

    by Anonymous Coward on Thursday April 14, 2016 @01:10PM (#51909339)

    Even state secrets are subject to FOIA acts and even if decades pass they are eventually released. These should not be any different.

    • Re:About time! (Score:5, Funny)

      by Aighearach ( 97333 ) on Thursday April 14, 2016 @01:35PM (#51909577)

      Even state secrets are subject to FOIA acts and even if decades pass they are eventually released. These should not be any different.

      Yeah. If MS wins this case, I'll commit to leaving windows installed on at least 1 computer in my office.

      I might not plug it into the network, but I'll find some use for it.

      • "I might not plug it into the network, but I'll find some use for it."

        Nonsense. Every network needs a honeypot.

        • Re: (Score:1)

          by Anonymous Coward

          there is a difference between a honeypot and a nuclear bomb.

    • Justice delayed = Justice denied (Score:5, Insightful)

      by sjbe ( 173966 ) on Thursday April 14, 2016 @02:16PM (#51909907)

      Even state secrets are subject to FOIA acts and even if decades pass they are eventually released

      What good does a FOIA act do for a citizen if they can't get an answer until decades later? The effects of the gag order and the information they are seeking happen presently. Denying a citizen the right to face their accuser in a timely manner is functionally equivalent to declaring them guilty of whatever they are accused of. The notion of a permanent gag order seems blatantly unconstitutional, not to mention immoral.

  • "recently criticized the 30-year-old Electronic Communications Privacy Act as outdated during his testimony in February before the U.S. House Judiciary Committee -- bringing along IBM's first laptop, released the same year, to help illustrate his point."

    This seems like an odd analogy to make. Did he ride a horse to the courthouse to show that the fourth amendment is outdated?

    • It's like a law implementing harsh punishment for leaving your car in a stable without a bale of hay and a clean water trough.

    • recently criticized the 30-year-old Electronic Communications Privacy Act as outdated during his testimony in February before the U.S. House Judiciary Committee -- bringing along IBM's first laptop, released the same year, to help illustrate his point.

      This seems like an odd analogy to make. Did he ride a horse to the courthouse to show that the fourth amendment is outdated?

      No, he's not making the case that the 4th Amendment is outdated. Laws can easily be changed, and should if they no longer meet the goals they are supposed to. Amendments take considerably more effort, which is a good thing.

      • Re: (Score:3)

        by dryeo ( 100693 )

        Amendments take considerably more effort, which is a good thing.

        That's arguable. If having a Constitution that is too hard to amend just encourages politicians to write unconstitutional laws and the courts to allow it, how is that a good thing? The Constitution should be a document that the government, including the courts, follows. Not a document that is routinely ignored.
        Really the fix would be a Supreme Court that took the Bill of Rights seriously, then amendments would be forced.
        Examples include this story. The 1st is pretty clear, Congress will make no law abridgin

        • Re: (Score:2)

          by dbIII ( 701233 )

          The 2nd is also pretty clear, everyone is allowed to be armed

          Until they turn 45.
          Obviously it's about the National Guard and has fuckall to do with actual gun ownership.

  • Corporations have no rights (Score:5, Insightful)

    by WillAffleckUW ( 858324 ) on Thursday April 14, 2016 @01:12PM (#51909367) Homepage Journal

    But spying on Americans is unconstitutional as they have done it.

    It's sad that SCOTUS won't allow Americans to sue for unconstitutional actions to collect their data, but will allow American companies (in the loosest sense of the term) to do so.

    • Kinda makes you think that SCOTUS considers corporations to be more of a "citizen" then actual human-being citizens..... Perhaps this is where we are today... "America.. Owned and Operated by corporations..."

      • Re:Corporations have no rights (Score:5, Insightful)

        by sumdumass ( 711423 ) on Thursday April 14, 2016 @04:22PM (#51911047) Journal

        Nah.. it is a matter of standing. You cannot sue unless you can prove you were wronged and entitled to sue. Well you can but it won't last long before getting tossed out.

        You and I cannot show we have standing unless someone is willing to violate the law and give us evidence. The company is given evidence about others (the secret nsa letters and gag orders) and can show standing except until now, no one has been able to make a claim. Ms is saying that the process limits their first amendment rights which gives them a claim they can put with the evidence.

        I doubt this would happen if Apple didn't fight the government and show Microsoft it wouldn't kill them. In fact I think this might be Microsoft trying to cash in on Apple's good fortune.

    • Re: (Score:2, Informative)

      by Anonymous Coward

      IANAL, but as I understand it, Americans can sue, but their cases are likely to be thrown out as they cannot show standing, or the government opts to exercise sovereign immunity. The reason we citizens lack standing is because the court orders are hidden, so we can't prove our rights were violated. The same thing can happen to the corporations, although when the court orders were actually issued to the corporation, the corporation may (again, IANAL) have standing. OTOH, perhaps the government argues that

      • Re: (Score:1)

        by Anonymous Coward

        OTOH, perhaps the government argues that since the corporation is not the one whose rights were violated, they have no standing, either - and maybe they get a judge to buy that.

        I suspect the reason Microsoft brought the suit on First Amendment grounds and not Fourth Amendment grounds is that Microsoft has standing on First Amendment grounds but not Fourth Amendment grounds. If Microsoft wins, then the parties whose data was collected can decide whether or not they sue the government for violating their Fourth Amendment rights. However, if they are suing for anything other than having one or more laws/behaviors being declared unconstitutional, then I doubt they will get anywhere.

      • Re: (Score:1)

        by JaiWing ( 469698 )

        ... or PAY a judge to get that ...

      • > Americans can sue, but their cases are likely to be thrown out as they cannot show standing, or the government opts to exercise sovereign immunity. The reason we citizens lack standing is because the court orders are hidden, so we can't prove our rights were violated.

        This is what makes Manning and Snowden heroes. The US government regularly shits on the constitution when it serves politicians' interests and they pretend that our system of checks and balances do not apply to them. I only wish they had

    • It's all about standing (Score:5, Insightful)

      by sjbe ( 173966 ) on Thursday April 14, 2016 @01:27PM (#51909505)

      It's sad that SCOTUS won't allow Americans to sue for unconstitutional actions to collect their data, but will allow American companies (in the loosest sense of the term) to do so.

      The difference (probably) is in that Microsoft has actual evidence of harm done to them and their customers so they have standing to sue. Microsoft would be aware of these gag orders and what the government was requesting from them. Additionally it costs a measurable amount of money for Microsoft to comply with these search orders so there is a way to gauge A) the amount of harm done and B) the cost of compliance. Since Microsoft should be able to show some amount of harm (even if small) then they would have standing to sue.

      While I agree that it's kind of shitty that citizens are in this catch 22 where they can't sue because they don't have standing but they can't get/prove the information to establish that they do have standing because the only means to get it is to sue. But if Microsoft can short circuit this problem on behalf of citizens then perhaps we will end up with a resolution after all.

      • I do hope this isn't a plan to snatch defeat from the jaw of victory...another approach they could use is that this is essentially an unlawful "taking" in a couple of senses (yet another amendment). They used to have the right to sell services that could be considered secure (yes, I know). If it's totally public, and it is, that none of their services are the least bit secure (from the government...we already know about the rest) - then no sales to anyone who cares about their privacy. That's potentially

      • Re: (Score:1)

        by Anonymous Coward

        exactly, but the "evidence" itself is under a gag order... would they be violating the gag by submitting them as combined evidence?

    • Re: (Score:1)

      by e r ( 2847683 )

      It's sad that SCOTUS won't allow Americans to sue for unconstitutional actions

      That's why we have the Second Amendment. Read what the founders had to say about it. It's not hyperbole.

      • Re: (Score:2, Funny)

        by Anonymous Coward

        A well-regulated, by the government, militia is going to turn on the government?

        You guntards are sad sacks.

    • Can you elaborate? SCOTUS does not control who sues whom. Any individual can sue the government in district court, and if they lose there they can appeal to the appellate court, and then if they lose there as well they can appeal to the SCOTUS, who could either hear the case or kick it back down the ladder.

    • Come on man, you can't see the pattern here ? :D

      Your citizenship attribute is directly proportional to the amount of money or information you can wield at any given moment.

      The wealthier or more "in-the-know" you are, the stronger your citizenship score.

      This is why if I protest a thing, I am ignored. But if say. . . Goldman Sachs or Google protests a thing, folks take notice.

      Especially those lawmakers who receive bribes. . . . er. . . campaign donations from said groups.

  • Warrant Canary ? (Score:1)

    by Anonymous Coward

    Maybe tech companies should offer a warrant canary service to all users. Just sent the same e-mail to the user everyday "In the last 2 weeks we have not received an order under Section 2705(b) of the Electronic Communications Privacy Act about you" and stop sending it for 2 weeks when data is being demanded.

    • Even better would be for them to ignore the gag orders and issue press releases announcing the actions, to keep the government in check. They've never imprisoned a corporate entity for ignoring consumer protection laws, for fraud, engaging in usury, or denying warranty service on items, so why should pointing out when politicians do evil land them in prison? It's not like politicians are hypocrites, right? oh wait.. nvm.

  • If they win this.. (Score:3)

    by SlashDread ( 38969 ) on Thursday April 14, 2016 @01:33PM (#51909555)

    I swear Ill give Windows another shot...

    • I swear Ill give Windows another shot...

      I got a little over enthusiastic and jumped the gun and am trying Windows right now. OH GOD! IT BURNS! IT BURNS! IT BUUUU...,...%./d"[carrier lost]

    • Clearly this is the embrace phase of.... something...

  • Lay down with dogs... (Score:5, Interesting)

    by Iamthecheese ( 1264298 ) on Thursday April 14, 2016 @01:52PM (#51909715)
    I admire this effort to look out for my privacy but it's too little and waaaaaaaay too late. The travesty of Windows 10, cooperation with the Chinese government, rolling over for the NSA, peering agreements that include customer data, privacy agreements detailing essentially inevitable loss of all personal data, abuse of certification programs... Microsoft hasn't cared about my privacy for the last 41 years and now suddenly they want to give precisely one fuck?

    Sorry Microsoft, I know a shit sandwich when I bite into one. If you want my trust here's what you need to do: Divest the software you want me to trust into a new department. Enforce complete transparency in that department. Enforce a top-to-bottom ethics code in that department. Offer a transparent reward for whistle-blowers there, overseen by an independent privacy-minded organization. Do all this and I'll trust the software from that one department.

    • Re: (Score:2)

      by lgw ( 121541 )

      It's a weird dichotomy for MS. Half the time they're either fighting or getting clever to protect customer privacy, yet the other half they're spying on customers to an absurd degree. WTF MS?

      MS could have been a real alternative to the Google panopticon had they gone a different way with Win10, but now all trust is gone.

  • By this I mean, are they being injured by this law? If not, then it seems like the courts might throw this out. But if they have been injured, then admitting that they have been injured is tantamount to admitting that they have received such orders, which they are expressly not allowed to do.

    I don't know what happens if Microsoft is unable to state whether or not they have standing to sue or not. Admitting they aren't (which if they have not been subject to such orders - unlikely) would be legal. And r

    • By this I mean, are they being injured by this law? If not, then it seems like the courts might throw this out. But if they have been injured, then admitting that they have been injured is tantamount to admitting that they have received such orders, which they are expressly not allowed to do.

      Almost. The overlords apparently made a tiny mistake, and put sunset clauses on a handful of those secrecy orders. Most of them never expire, but some of them have, and are therefore legal to complain about publicly.

  • Beware of "third party storage" (Score:3)

    by oneiros27 ( 46144 ) on Thursday April 14, 2016 @03:07PM (#51910383) Homepage

    Basically, there's a concept that if someone else is holding your stuff, then it's not private, and therefore, they only need a subpoena and not a warrant to get it ... and they don't need to notify the person whose stuff it is (so there's no chance for them to get a lawyer to try to stop it).

    This is why someone concerned about their privacy would prefer hosting their own mail server (in their own home, not at a colo) vs. using one of the many 'cloud' offerings:

    https://www.worldprivacyforum.... [worldprivacyforum.org]

    But you probably don't want to host your own e-mail if you're a government official, and there's any chance of anyone sending work e-mails there.

  • I see no problem in gagging the warrant for a year - or even two.

    But if after two years, you:

    1) Have not arrested, tried and charged the man,

    2) Have not even found evidence of a crime, sufficient to extend the warrant

    and

    3) Are so lazy and uncaring of legal rights that you think you shouldn't have to go to court and prove the right to extend the gag order.

    Then:

    A) You are a fool that should be fired

    and

    B) You are not trying to prevent criminals and enemies of the state from figuring out what you are dong,

    • Naw, based on Eldred v. Ashcroft [wikipedia.org], Congress can just approve a gag order extension every time the previous gag order is about to expire. And legally, it won't be "indefinite".

      If you want to legally prohibit indefinite anything, you have to explicitly state that the copyright or gag order expires in x years with no extension or renewal possible. Otherwise the rules lawyers will walk all over you.

  • They have profit centers based on getting paid by the government to compromise your equipment - this is obviously just PR - behind the scenes nothing is changing - you do not own your phone or computer.

  • It would be interesting to see Microsoft fight this with an army of canaries, one or more for each of its customers.

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