Companies Back Microsoft’s Effort to Alert Users When Authorities Seek Their Data

Wall Street Journal, Sept. 2, 2016 – More than a dozen tech companies, including Apple Inc., Amazon.com Inc. and Google parent Alphabet Inc., have unified behind Microsoft Corp.’s legal bid to alert customers when federal agents have requested their digital data.
Those companies, as well as media firms and big companies that use cloud-computing services, have filed briefs in support of a suit Microsoft brought against the Justice Department in April over secret customer data searches.
That suit, filed in federal court in Seattle, challenges the constitutionality of indefinite gag orders attached to federal demands for customer information.
Apple, along with Lithium Technologies Inc., Mozilla Corp. and Twilio Inc., argued in a filing late Friday that such orders “have severely impacted their ability to be transparent about Government access to the data of customers and users.”
In its suit, Microsoft said it received 5,624 federal demands for customer information in the previous 18 months, nearly half of which—2,576—came with gag orders that barred the company from telling customers the government was looking at their data. Additionally, Microsoft said 1,752 of those secrecy orders had no time limits, meaning the company might never be able to tell those customers that federal agents had seen their information.
Those indefinite gag orders violate Microsoft’s First Amendment right to inform customers about the search of their files when “secrecy is no longer required,” the company argues in its filing. The suit contends that a provision of the Electronic Communications Privacy Act that law enforcement uses to justify the gag orders “flouts” Fourth Amendment requirements that the government give notice to people when their property is being searched or seized.
Microsoft also received support Friday from four former U.S. attorneys and a former special agent of the Federal Bureau of Investigation, all based in Seattle.
“In the face of ever advancing technology,” the legal group argued, “law enforcement officials have functioned—and can continue to function—effectively under the constitutional rule that the Fourth Amendment requires notice to the target of the government’s search.”
Several companies that use cloud-computing services, including BP America Inc., Delta Air Lines Inc. and Eli Lilly and Co., also supported Microsoft. Cloud users store data with big tech firms such as Microsoft.
More than two dozen media organizations, including the Washington Post, Fox News Network LLC and National Public Radio, also collectively filed a brief in support of Microsoft, arguing the “gag orders significantly limit the ability of the press to report on topics of public concern and, accordingly, they threaten the liberty of the American people.”
Fox News parent company 21st Century Fox and News Corp, which owns The Wall Street Journal, share common ownership.
The tech companies didn’t all file together. Google and Amazon joined with firms including Dropbox Inc., Yahoo Inc. and LinkedIn Corp. (which agreed in June to be acquired by Microsoft), in their own filing.
In the filing, Yahoo said it received more than 700 federal search warrants for user data in the first seven months of this year, and roughly 60% were accompanied by gag orders of indefinite duration.
The companies said in the filing they “often compete vigorously with Microsoft and with each other,” they “speak with one voice because of the singular importance of this case to them and to their customers.”
One big tech company, Facebook Inc., didn’t join any of the filings, though a spokesman said the company shares “Microsoft’s concern about gag orders” and plans to watch the case closely.
It isn’t the first time tech companies, some of them rivals, have supported one another against the government on a privacy matter. In February, Google, Facebook, Microsoft and others filed a joint motion supporting Apple as it battled the Justice Department over efforts to unlock an alleged terrorist’s iPhone. The agency dropped that effort after it found another way to retrieve the phone’s data.