Microsoft backs clients in FBI fight

FILE PHOTO - The logo of Microsoft is pictured in Issy-les-Moulineaux

FILE PHOTO - The logo of Microsoft is pictured in Issy-les-Moulineaux

Published Jan 23, 2017

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San Francisco – Microsoft’s effort to halt the FBI’s

so-called sneak-and-peak searches of e-mails may ride on whether it’s allowed

to defend its customers’ constitutional rights.

The judge who will decide whether the case can go ahead

told the company’s lawyers to be ready in court Monday to address earlier

rulings that undercut their arguments. At stake is half of Microsoft’s case to

block the US from secretly accessing customer data stored in the cloud,

including e-mail.

Microsoft drew support from tech leaders including Apple,

Google and Amazon.com when it sued the US Justice Department in April. They say

the very future of mobile and cloud computing is at risk if customers can’t

trust that their data will remain private. The federal law allowing searches

goes “far beyond any necessary limits” and infringes users’ Fourth Amendment

rights against unlawful search and seizure, they contend.

The Justice Department argues it needs such digital tools

to help fight increasingly sophisticated criminals and terrorists who are savvy

at using technology to communicate and hide their tracks. Disclosing the

searches would undermine investigations and put Americans at risk, they argue.

A decision for the US would give an early victory to President Donald Trump,

who said during his campaign that he would compel technology companies to

cooperate.

The case may never reach that point unless Microsoft wins

the argument that it has the ability to sue - or standing - to protect customer

privacy.

Rights-case barrier

“Standing has been a barrier in cases that seek to

vindicate people’s privacy rights,” said Jennifer Granick, a Stanford Law

School professor. “It’s a serious issue in conducting constitutional

litigation, and this case is no different.”

Four court decisions listed by US District Judge James

Robart in Seattle all reached the same conclusion - Fourth Amendment

protections can only be cited by individuals, and not vicariously by third

parties. The most recent was a 2014 US Supreme Court ruling that the family of

a driver who was shot and killed by police after a high-speed chase couldn’t

invoke that right on his behalf related to a lawsuit over his death.

Microsoft’s lawyers may have anticipated the Fourth

Amendment challenge in their complaint, stating that the government’s silent

searches of user data have directly injured it by “eroding the customer

trust" in the company.

Read also:  Microsoft sales buoyed by cloud demand

The industry’s push against government intrusion into

customers’ private information began in the wake of Edward Snowden’s 2013 disclosures

about covert data collection that put them all on the defensive.

Microsoft said when it filed its lawsuit that

federal courts had issued almost 2 600 secrecy orders barring it from

disclosing government warrants for access to private e-mail accounts. It said

more than two-thirds of those orders have no fixed end date, meaning the

company can never tell customers about them, even after an investigation is

completed.

Free speech

The Redmond, Washington-based company concedes there may

be times when the government is justified in seeking a gag order to prevent

customers under investigation from tampering with evidence or harming another

person. Still, the statute is too broad and sets too low of a standard for

secrecy, Microsoft contends, arguing regarding the other half of its case that

its own free-speech rights are being violated by the orders.

The Electronic Frontier Foundation, a privacy group

supporting Microsoft in the case, fears a ruling that the company can’t sue

could mean no one will ever have the right to file a data privacy lawsuit under

the Fourth Amendment. The people whose privacy might be violated will never

find out about the searches, said Andrew Crocker, a lawyer for the group.

“We obviously think that providers should be able to

raise the rights of their customers,” Crocker said. “Otherwise you’re cutting

customers out of the equation when the government comes to companies with these

secret gag orders."

BLOOMBERG

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