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.
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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."