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Brad Smith brought a 30-year-old laptop to the House Judiciary Committee to illustrate the outdated nature of the Electronic Communications Privacy Act. (Image via House Judiciary Committee/@HouseJudiciary)
Microsoft President Brad Smith brought a 30-year-old laptop to the House Judiciary Committee to illustrate the outdated nature of the Electronic Communications Privacy Act. (Image via House Judiciary Committee/@HouseJudiciary)

The American Civil Liberties Union (ACLU) filed a motion today to join Microsoft’s lawsuit against the U.S. Justice Department. Microsoft filed the suit last month, claiming gag orders — which prevent the company from notifying customers when their data is seized by the government — are unconstitutional.

The ACLU seeks to join the suit on its own behalf, as an organization that uses Microsoft’s products. The non-profit endorses Microsoft’s claim that the secrecy orders violate the Fourth Amendment, which requires the government to notify citizens when their private property is searched or seized. Microsoft also argues that its First Amendment right to communicate openly with its customers is violated by the gag orders.

“A basic promise of our Constitution is that the government must notify you at some point when it searches or seizes your private information,” Alex Abdo, a senior staff attorney with the ACLU said in a press release. “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 suit targets Section 2705(b) of the Electronic Communications Privacy Act, a provision that Microsoft President and Chief Legal Officer Brad Smith has criticized as wildly outdated. Smith told GeekWire that recent events motivated the company to take legal action. In one case, Smith said, the government wanted to hold Microsoft in contempt of court for neglecting to turn over customers’ emails until the secrecy battle had been resolved.

Microsoft crunched the numbers and discovered over 2,500 secrecy orders in the past 18 months, 68 percent of which had no time limit.

Microsoft President and Chief Legal Officer (GeekWire File Photo)
Microsoft President and Chief Legal Officer (GeekWire File Photo)

“We’re raising this because of the implications for where technology is going,” said Smith. “We’re bringing this to a courthouse in what properly has become known as Cloud City. This is about the future of cloud technology. It’s about the future of privacy in the cloud. I think the issue is the right issue at the right time at the right place.”

Microsoft’s lawsuit is the latest front in an ongoing battle between the government and tech companies over issues of privacy and security. The most high-profile example was the clash between the FBI and Apple, over a suspected terrorist’s encrypted iPhone, that played out earlier this year. Microsoft, along with other tech giants, supported Apple in that fight.

“People do not give up their rights when they move their private information from physical storage to the cloud,” Microsoft said in its complaint against the Justice Department. “Microsoft therefore asks the Court to declare that Section 2705(b) is unconstitutional on its face.”

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