Redmond’s battle against the U.S. Department of Justice got a boost just before the long weekend, thanks to an amicus brief filed on its behalf by several major tech companies, including Apple, Google, and Mozilla. They joined other groups, such as the ACLU, which filed briefs earlier this year in support of Microsoft’s position.
At issue is Microsoft’s lawsuit against the government’s indiscriminate use of gag orders that prevents the company from informing its customers when a government agency requests access to their data. The suit argues that the Electronic Communications Privacy Act (ECPA), which allows the government to seize data without informing suspects, is unconstitutional.
“Critical to Our Vision”
“Transparency is the core pillar for everything we do at Mozilla,” Denelle Dixon-Thayer, Mozilla’s chief legal and business officer, wrote on the company blog Friday. “It is foundational to how we build our products, with an open code base that anybody can inspect, and is critical to our vision of an open, trusted, secure web that places users in control of their experience online.”
When requesting user data, the gag orders are sometimes issued even though the government hasn’t demonstrated why the gag orders are necessary, Dixon-Thayer added.
“Worse yet, the government often issues indefinite orders that prevent companies from notifying users even years later, long after everyone would agree the gag order is no longer needed,” she said. “These actions needlessly sacrifice transparency without justification. That’s foolish and unacceptable.”
A Broad Coalition
The debate centers around the ECPA, a 30-year-old piece of legislation that the government has been using more and more as a justification to seize personal and business records stored on “external servers” as per the law. But in a world where information is increasingly stored or backed up to the cloud, such an interpretation of the law gives the government virtually unlimited power to seize customers data.
“Whether the government has a warrant to rifle through our mail, safety deposit boxes, or emails stored in the cloud, it must notify people about the searches,” said Lee Tien, senior staff attorney for the Electronic Freedom Foundation, which also filed a brief in support of Microsoft. “When electronic searches are done in secret, we lose our right to challenge the legality of law enforcement invasions of privacy. The Fourth Amendment doesn’t allow that, and it’s time for the government to step up and respect the Constitution.”
Microsoft filed suit against the DOJ in April with the goal of striking the law down. In its lawsuit, Redmond claimed that it has been subjected to more than 2,500 such gag orders during an 18-month period.
While technology components and electronic privacy groups are perhaps Microsoft’s most obvious allies, support for the lawsuit has cut across industries. Delta Air Lines, Getty Images, GlaxoSmithKline, Eli Lilly, BP America, the Washington Post, and Fox News, have all signed on in support of Microsoft’s position. Even some former FBI and DOJ officials have voiced their support by filing their own amicus briefs.
