Chih Yun Wu
February 14, 2017
One of several ongoing lawsuits brought by communications service providers against the federal government, Microsoft alleges that government-issued gag orders violate the First Amendment. In contrast to the various First Amendment challenges that have been brought by companies to invalidate statutes that restrict their ability to use or access customer data, here Microsoft is using the First Amendment to protect its customer’s data against seizure by the Federal Government.
Under Section 2705(b) of the Electronic Communications Privacy Act (EPCA), the federal government can obtain court orders that prevent the companies from providing notice to their customers – sometimes indefinitely. Microsoft challenged Section 2705(b) as violating its right as a business to talk to its customers under the First Amendment. In particular, Microsoft alleges that the government orders are content-based because they categorically bar Microsoft from speaking about the orders. As of this blog post, Microsoft’s First Amendment claim has passed the pleadings stage, with the District Court noting that the Government has the burden of showing that the statute meets strict scrutiny.
Microsoft also asserted a Fourth Amendment claim on behalf of its customers, alleging that indefinite nondisclosure orders prevents the customers from ever receiving notice of the government’s seizure of their private data. However, the court found that established precedent prevents a third party from vicariously asserting another person’s Fourth Amendment rights, despite acknowledging Microsoft’s argument that some customers would not be able to assert their own claims because they may never know about the government’s actions.