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Microsoft, Feds Face Off in Court Over Customer Privacy
Posted January 24, 2017
Microsoft, Feds Face Off in Court Over Customer Privacy
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By Matt Day. Updated January 24, 2017 8:20AM

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Microsoft and the Justice Department sparred in court in Seattle on Monday over whether the software company had the right to push back against law-enforcement searches of customers' data.

The Redmond company sued the federal government last year, arguing that frequent court orders for customer data -- many of which come with a prohibition on telling the person that the government came calling -- violate the Constitution's privacy protections.

The Justice Department replies that such gag orders on searches of digital information are necessary to avoid tipping off potential suspects, including in sensitive cases relating to child pornography or terrorism.

But at issue in U.S. District Court on Monday was a more preliminary concern: whether Microsoft had the authority to sue on behalf of its customers in the first place.

The Fourth Amendment, which guards against unreasonable government search and seizure, is generally wielded by individuals on their own behalf.

Cases cited by U.S. District Judge James Robart, who is presiding over the dispute, hold that Fourth Amendment protections cannot be "vicariously asserted" by other parties except under special circumstances.

Robart didn't rule on the issue Monday. He said a written opinion would follow, though he didn't say when.

Stephen Rummage, an attorney representing Microsoft, said the case presented a special circumstance that gave the company standing to sue. Many of the people whose Microsoft accounts are searched are never made aware the search occurred, preventing them from asserting their own rights, he said.

"People need to get notice when the government comes knocking at the door -- Microsoft's door in this instance," said Rummage.

Servers maintained by Microsoft, Google, and other technology giants have gone a long way toward replacing desk drawers or file cabinets as custodian for personal effects, including health-care and tax records, and love letters, Rummage said.

"Those are the kind of things that historically have been granted the greatest form of protection" from government search and seizure, he said.

In its original complaint, Microsoft said it had received 5,600 federal demands for consumer data in the past 18 months. About half were accompanied by orders prohibiting disclosure of the search to the customer.

The government says people's constitutional rights are already protected by the process that leads to such warrants and gag orders in the first place.

"Microsoft only provides content to the government when the government gets a warrant for that content," Jennie Kneedler, a Justice Department attorney, said Monday. "The process of getting a warrant from a neutral magistrate is the core safeguard of the Fourth Amendment."

The case is the fourth time Microsoft has sued the federal government on issues related to customer protections since Edward Snowden's disclosures about the government's reach into the internet and software companies' participation in such schemes.

Microsoft also has asserted that gag orders on searches violate the company's First Amendment rights to discuss government conduct.

The Justice Department says that claim is overly broad. In instances where Microsoft believes the government has overstepped its bounds with a gag order, it should argue that case individually, government lawyers said.

© 2017 Seattle Times syndicated under contract with NewsEdge/Acquire Media. All rights reserved.

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