Our photos, emails, business plans, financial information, medical records, and legal documents are all increasingly stored in the cloud. That information can be sensitive and personal, and the government should not have easy access to it, much less overbroad secret access to it. That’s why CDT filed an amicus brief in the Second Circuit, urging the Court to rein in government efforts to obtain confidential data without the knowledge of the data’s owner.
The law in question is the Electronic Communications Privacy Act (ECPA) – which CDT has sought to reform for years to address the reality of communications in the modern digital age – and the government’s use of ECPA to issue orders preventing cloud service providers from notifying their customers that the government has sought access to a customer’s private electronic data. Such gag orders tread on the First Amendment rights of cloud providers because they restrict them from talking to their customers. And by barring that speech, the gag orders deprive the cloud users of a chance to challenge the government’s conduct, including that the subpoena may be overbroad or may call for information protected by law from disclosure (such as the attorney-client privilege).
Both First Amendment free speech rights and Fourth Amendment safeguards against unreasonable searches are at issue when it comes to ECPA gag orders. We argue in our brief that the court should require the government to meet a high legal standard when it tries to impose such gag orders.
We were represented by Mayer Brown, and the Chamber of Commerce, Internet Association, and the National Association of Manufacturers joined us on the brief.