ACLU Joins Microsoft’s Lawsuit Against U.S. Government Over Data Request Gag Orders

Recently, Microsoft announced that it was suing the U.S. government because almost half of the data requests are now accompanied by gag orders, restricting Microsoft from telling its customers when the government demanded to see their data, often for an indefinite period of time. As a customer of Microsoft, the American Civil Liberties Union (ACLU) filed a motion to join the same lawsuit against the U.S. government’s proliferation of secret orders.

Early in 2014, President Obama ordered the Justice Department to stop issuing National Security Letters that have no expiration date, but according to the ACLU and Microsoft, the government continues to issue these indefinite gag orders.

ACLU said that the government is abusing the Electronics Communications Privacy Act of 1986 to force companies to remain silent about when it requests data from cloud services providers such as Microsoft, Google, Amazon and others. Many of these cloud services companies have policies to inform their customers about government data requests, but they can’t do that if the government issues gag orders alongside them.

Microsoft challenges the constitutionality of gag orders because they violate the company’s free speech rights by preventing it from notifying its users. Microsoft also believes the gag orders violate the fourth amendment, which gives people the right to be notified when the government searches or seizes their property.

The ACLU seems to agree with that theory as well:

“A basic promise of our Constitution is that the government must notify you at some point when it searches or seizes your private information,” said Alex Abdo, a senior staff attorney with the ACLU Speech, Privacy, and Technology Project. “Notice serves as a crucial check on executive power, and it has been a regular and constitutionally required feature of searches and seizures since the nation’s founding. The government has managed to circumvent this critical protection in the digital realm for decades, but Microsoft’s lawsuit offers the courts an opportunity to correct course.”

The latest version of the Email Privacy Act, which is meant to reform the ECPA, introduced many welcome reforms for 21st century digital privacy. However, it also removed the right of cloud services customers to automatically be informed by the government that their data has been requested, a provision that existed in a previous version of the bill. The EPA allows companies to notify their customers about data requests, but it will be at their own discretion. The bill could still be amended to fix this issue in the Senate.

Lucian Armasu is a Contributing Writer for Tom's Hardware. You can follow him at @lucian_armasu. 

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Lucian Armasu
Lucian Armasu is a Contributing Writer for Tom's Hardware US. He covers software news and the issues surrounding privacy and security.
  • engineer5261
    How sickening
  • Kimonajane
    The US government is evil, full of murderers, liars and self serving thieves. They killed Seal Team 6 to shut them up. No autopsy need for the Supreme court judge they murdered.
  • gangrel
    It may well be sickening, but it shouldn't be surprising. Consider the other story, where the FBI is refusing to release information about the browser direct violation of existing law.

    It seems to be an occupational hazard in security...that security is the be-all, end-all, crucial goal. Anything that inhibits them, is clearly Not In The National Interest...and can therefore be ignored.

    One might also consider the trends in Congress (Republicans holding both houses) and the Supreme Court (moving more to the right). They may well think they'll never really be taken to task.
  • agentxjp
    I bet this upsets Trump the authoritarian.
  • Mac266
    Welcome to the world kid.
  • H4rdware
    Yeah it's all so crazy anymore, the the citizens of the US have completely lost control of the US Gov, and are quickly loosing all their rights as well.
  • 3ogdy
    Hopefully, someone manages to revise the constitution and put some serious punishments in place for the bitches in governments such as the American one. Really tired of all these hoes from FBI, NSA and the government.
    May people use guns properly and overthrow bitch governments. If they believe our death is the answer, let's get them full aof answers right now.
  • Orumus
    Kinda sad the first thing I thought when I saw the headline was, Wow the ACLU is doing something to benefit all Americans ! Then I saw "As a customer of Microsoft" . Oh... never-mind.
  • Kimonajane
    Wow I thought I would never agree with anything the ACLU wants but this time I do. The fascist FED is too big, corrupt and secretive.