Ruling in Microsoft’s Challenge to Gag Order a Win for Transparency

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Today, Microsoft’s effort to alert customers when they are the subject of searches by the government took a crucial step forward. Judge James Robart denied the government’s motion to dismiss the case, and allowed Microsoft to assert its claim that the government stifled the company’s First Amendment rights when it applied a “gag” order to stop them from sharing these requests with its customers. CDT is an amicus in the case.

“When Microsoft, or any company, can’t alert customers to searches of their most personal and private information, everyone suffers. Customers face an invasion of privacy, the company becomes involuntarily complicit in secret searches, and society can’t engage in the broader policy debate about the appropriate scope of government surveillance. We commend Microsoft for bringing this case and the judge for allowing it to go forward,” said Chris Calabrese, CDT Vice President for Policy.

The court rejected Microsoft’s claim that it could assert the Fourth Amendment rights of its users. “Users have a Fourth Amendment right to notice when their communications are searched. When they receive no notice of the search, their providers should be able to assert their rights,” Calabrese added.

The case, Microsoft vs. the Department of Justice, will now move forward on First Amendment grounds with discovery and further briefing.

Our post further describing the issues in the case can be found here.

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