[UPDATE 10.02.2017 – 14:43 CET] Microsoft’s legal officer, Brad Smith issued a statement welcoming the judge’s decision:
“We’re pleased this ruling enables our case to move forward toward a reasonable solution that works for law enforcement and ensures secrecy is used only when necessary.” – Brad Smith, Microsoft President and Chief Legal Officer.
[09.02.2017 – 21:32 CET]
Courts in the United States continue to side with Microsoft in its battle against the US government. On Wednesday, a federal judge in Seattle ruled that the company’s lawsuit against the Department of Justice (DoJ) could go ahead. The decision is the latest twist in a near year-long saga between Microsoft and the DoJ.
Microsoft is suing the DoJ on behalf of its customers. The company argues that legal demands for data in its cloud storage facilities are dishonest. The case pivots on the argument that such demands are accompanied by a gag order which is never lifted.
This means Microsoft is unable to inform customers if their data has been given to the US government. More importantly, the company can never tell its customers, even if years have passed since the request. Microsoft says that this violates the First and Fourth Amendment rights of its customers.
In its filing, Microsoft says that this infinite gag order on requested data is a new occurrence. The company points out that the government would have to give notice before the rise of cloud storage. Microsoft says the DoJ has expanded its ability without legal right and can now conduct “secret investigations”.
Representing the Fourth Amendment
For its part, the Department of Justice says Microsoft’s suit is Frivolous. Indeed, the DoJ had asked the judge to dismiss the case on the basis the company has not suffered a “concrete injury” by not telling customers. In simpler terms, the DoJ believes Microsoft cannot sue based on the Fourth Amendment on behalf of other people.
Judge Robart thinks differently and for the most part sided with Microsoft:
“In at least some circumstances, however, the Government’s interest in keeping investigations secret dissipates after an investigation concludes and at that point, First Amendment rights may outweigh the Government interest in secrecy,” he wrote.
“Some of Microsoft’s customers will be practically unable to vindicate their own Fourth Amendment rights.”