Last year, Microsoft sued the federal government over its practice of routinely issuing gag orders when it presented warrants for emails. According to an 18-month analysis by Microsoft, the Department of Justice issued indefinite gag orders under the Electronic Communications Privacy Act of 1986 in 68 percent of cases where it served warrants on Microsoft for customer emails. These indefinite gag orders require Microsoft and other companies to remain silent about the warrant until further notice, or forever.
In its lawsuit, Microsoft alleged that this practice violated its First Amendment right to communicate honestly with its customers. It also claimed that the practice violated its customers’ Fourth Amendment right to know when the government has searched or seized their property.
Moreover, Microsoft and its supporters claim that the gag orders jeopardize the trust people have in the privacy of their emails and other data stored in the cloud. A lack of trust in that privacy could undermine the growth of cloud computing.
While this was not technically a criminal case, it directly affects many criminal cases. These essentially permanent gag orders prevented Americans from even knowing that a search warrant had been served on them. It allowed unchecked surveillance and evidence collection to occur while remaining secret even if the investigation were resolved in the individual’s favor.
Microsoft has just agreed to drop the lawsuit. This is because an internal policy memorandum dated Oct. 19 laid out some voluntary restraints on the use of ECPA gag orders by the Justice Department.
The memorandum, which was written by a deputy attorney general, told U.S. attorneys that the gag orders should “have an appropriate factual basis and each should extend only as long as necessary to satisfy the government’s interest.” It also appears to limit the use of indefinite gag orders, saying that, except in exceptional circumstances, federal prosecutors should limit the delay in notification to a year or less.
Microsoft called this an “unequivocal win” for its customers and “an important step for both privacy and free expression.”
What’s unclear, of course, is whether the policy memorandum will be effective in reining in indefinite gag orders by federal prosecutors. Also, the targets of these warrants are unaware of them, so Microsoft’s intervention was necessary for the issue to come before the courts at all. What recourse will suspects or criminal defendants have against secret warrants if the gag orders continue to be used?
Do you think these secret warrants and gag orders violate people’s rights? Do you think the Justice Department will limit its use of them?