It seems the United States Government cannot stop secretly spying on its citizens, but Microsoft, and other service providers, may be paving the way to at least remove some of the secrecy. U.S. District Court Judge James Robart—recently in the headlines for putting President Trumps travel ban on hold, issued a 47 page opinion which will allow Microsoft to go forward with its lawsuit claiming the U.S. Government has been violating the First Amendment. The claim states there is a First Amendment violation if the government prevents Internet and web based providers from alerting their customers when the government requests their data. The United States Government has been spying on high interest individuals’ cloud data, and then issuing an indefinite gag order, directing Microsoft and other service providers to not disclose these searches to the end user.
Microsoft states, “[t]he vast majority of these secrecy orders relate to consumer accounts and prevent Microsoft from telling affected individuals about the government’s intrusion into their personal affairs; others prevent Microsoft from telling business customers that the government has searched and seized the emails of individual employees of the customer.” Microsoft goes on to say that nondisclosure orders with an unlimited timeframe violate the companies First Amendment rights because it prevents the corporation from going to the public and “speaking out” about government intrusion. Further, Microsoft alleges people have a right to know when a search warrant has been presented against them, and nondisclosure prevents people from accessing this right.
“The government has increasingly adopted the tactic of obtaining the private digital documents of cloud customers not from the customers themselves, but through legal process directed at online cloud providers like Microsoft.”
The government, in its defense, will likely claim issues of national security make the secrecy necessary. Robart’s opinion reflects this, citing Times Mirror Co. v. United States, “First Amendment rights must be balanced against ‘the substantial burden openness [may] impose on government investigations.’” The argument of national security has been used countless times in the past, and has generally been effective in getting the courts to side with the U.S. Government.
Noticeable in all of this is the Courts refusal to grant standing to Microsoft’s Fourth Amendment claims. The Court states:
As Microsoft alleges, the indefinite nondisclosure orders allowed under Section 2705(b) mean that some customers may never know that the government has obtained information in which those customers have a reasonable expectation of privacy… For this reason, some of Microsoft’s customers will be practically unable to vindicate their own Fourth Amendment rights.
Notice of a search is a core part of the Fourth Amendment’s protections. While Microsoft has notice, the end user, whose information is being searched, does not. However, the Court believes that Fourth Amendment protections are inherently personal, and must be brought by the affected individual.
While Judge Robart makes an important point, the way personal information is stored is much different than it was even ten years ago. The cloud is constantly growing, and constantly adding more and more features to make users lives easier. People are constantly connected. People are more likely to store information in a cloud based system today then they are to store flies in a filing cabinet. The Court is right, our Fourth Amendment protections are incredibly personal, but as technology grows, some of that personal element has eroded away. Who better to look out for the end user than the service provider, especially if they are willing.
It looks like there could be a long drawn out legal battle that may even make it to the Supreme Court. Both sides have a lot at stake here. If the government is forced to stop the practice of indefinite nondisclosure orders, it will be seen as a victory against government surveillance. However, it will be an uphill battle, as a soon to be conservative court would likely rule in favor of National Security.