In the case, Microsoft argues that gag orders often used in digital-data investigations are unconstitutional. The gag orders prevent the company from informing customers that their data is the subject of a federal search warrants.
Scores of technology companies, media enterprises, corporations, organizations and former law-enforcement officials filed briefs Friday in support of Microsoft’s lawsuit against the U.S. government that contends a procedure used by federal investigators to collect digital data is unconstitutional.
Amazon.com, Google, Apple, Box, LinkedIn and other tech giants banded together to support Microsoft, saying law enforcement must notify people and organizations when data they store in the cloud is the subject of a federal search warrant.
Among others filing supporting briefs were four former U.S. attorneys from the Western District of Washington, as well as the former head of Seattle’s FBI office. Media companies across the U.S., including The Seattle Times, The Associated Press and Fox News Networks, filed documents supporting Microsoft’s position as well.
The Redmond company sued the U.S. government in April over a tool used by law enforcement when investigating email or other data stored online. Law-enforcement agencies often obtain a court order that prevents data-storage companies from informing a customer when the government is seizing their data.
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The government has said the orders can be necessary to prevent the subject of a search from acting differently while the investigation is continuing.
Microsoft found the order was used in nearly half of the federal search warrants it has dealt with in the past year and a half. The company says the gag order violates customers’ Fourth Amendment right, which protects against unreasonable searches and seizures.
More so-called “friend of the court” briefs rolled in near the end of the day Friday, the deadline to file such briefs for the suit. The case was filed in U.S. District Court in Seattle.
The U.S. Chamber of Commerce joined with Alaska Airlines, Getty Images and other businesses to throw their weight behind Microsoft, and a group of law professors also supported the company.
More briefs were expected by midnight Friday.
“We’re grateful for the strong support from over 80 signatories that reflect so many diverse views,” Microsoft President and Chief Legal Officer Brad Smith said Friday. “After all, it’s not every day that Fox News and the ACLU are on the same side of an issue.
“We believe the constitutional rights at stake in this case are of fundamental importance, and people should know when the government accesses their emails unless secrecy is truly needed.”
In their brief, the former federal law-enforcement officials agreed with Microsoft that a temporary gag measure may occasionally be necessary in narrow circumstances, but it should not be used broadly.
Former U.S. Attorneys Jeffrey Sullivan, John McKay, Kate Pflaumer, Mike McKay and FBI Special Agent Charles Mandigo wrote “ … law enforcement can function effectively — even in the cloud — while following the Fourth Amendment’s requirement of notice to individuals whose private information has been searched.”
All of the former officials were involved in seeking secrecy orders while in office, John McKay said Friday. Such orders can be necessary to protect someone’s safety, he said, but the former officials are concerned with the increasing use of the orders.
“Because of the nature of the cloud, the government has gotten lazy and is no longer making specific showings of need as to why secrecy orders should be granted,” McKay said.
McKay served as the U.S. Attorney from 2001 to 2007. He’s now at law firm Davis Wright Tremaine, which is representing Microsoft in the case. McKay’s involvement with the brief was in his personal capacity.
The case is Microsoft’s latest court battle involving cyberprivacy, an issue in which the company has taken a leading role as more and more data is digitally stored in cyberspace. Many federal laws are outdated, Microsoft has said, and are not applied well to new technologies.