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 Microsoft today got its first chance to be heard in open court in its landmark lawsuit challenging the U.S. government’s ability to keep the company from telling customers when they’re the targets of government warrants. The one-hour argument, which started with a 30-minute challenge by lawyers for the government, left a federal judge in Seattle admitting that he wasn’t sure how to proceed.

In the case, which Microsoft filed in April, the company is asking U.S. District Court Judge James L. Robart to declare unconstitutional a federal law that lets the government keep Microsoft and other tech companies from informing their customers when investigators get warrants to access their emails and other cloud data the companies are storing.

Today’s hearing, focusing on the U.S. Justice Department’s motion to dismiss the suit, was held to decide whether the case should proceed to trial. Microsoft’s arguments relied heavily on assertions that no case prohibits what it’s seeking, and that therefore the suit should be permitted to proceed.

Microsoft president and chief legal officer Brad Smith has said it’s “becoming routine for the U.S. government to issue orders that require email providers to keep these types of legal demands secret.” (GeekWire File Photo / Todd Bishop)

“I have to confess to being in a dilemma,” Robart said at the end of arguments today. “The frequent use of ‘There is no case that says . . . ‘ is this court’s problem.” In the absence of clear precedent to rely on, Robart may be faced with the prospect of making new law, an action courts often hesitate to take. His written decision is expected within the next few days or weeks.

A ruling in Microsoft’s favor means the case will likely proceed to trial. A ruling in favor of the government will end the suit, but only if it knocks down both Microsoft’s First Amendment and its Fourth Amendment arguments.

The hearing comes at a time of transition for the U.S. Justice Department. It’s not clear whether the DOJ’s position on the issue will change in any way under the Trump administration, and that issue was not addressed by any of the lawyers in court today.

The suit challenges Section 2705(b) of the Electronic Communications Privacy Act, which lets the government seek secrecy orders preventing companies from letting their customers know when their data is the target of a federal warrant, subpoena or court order. Sometimes the orders have no time limits.

Arguments today — by Erik Soskin and Jennie Kneedler for the government and by Stephen Rummage for Microsoft — drilled down on points they made in documents filed earlier with the court. The lawyers quickly got tangled in conflicting interpretations of decisions by the U.S. Supreme Court and other courts whose precedents Robart must grapple with.

Microsoft’s argument, as stated in its complaint, is that “this statute violates both the Fourth Amendment, which affords people and businesses the right to know if the government searches or seizes their property, and the First Amendment, which enshrines Microsoft’s rights to talk to its customers and to discuss how the government conducts its investigations—subject only to restraints narrowly tailored to serve compelling government interests.”

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

Over one 18-month period, federal courts issued nearly 2,600 secrecy orders silencing Microsoft from speaking about warrants and other legal process seeking Microsoft customers’ data, Microsoft has asserted in its complaint. Of those, more than two-thirds contained no fixed end date.

“These twin developments — the increase in government demands for online data and the simultaneous increase in secrecy — have combined to undermine confidence in the privacy of the cloud and have impaired Microsoft’s right to be transparent with its customers, a right guaranteed by the First Amendment,” Microsoft said.

In its July motion to dismiss Microsoft’s action, the Justice Department attacked the case on several grounds, asserting that Microsoft had no legal right to assert individuals’ Fourth Amendment rights, and that the company’s First Amendment arguments were legally insufficient.

The government wrote in its motion:

The public has a compelling . . . interest in keeping criminal investigations confidential when a judge has found there is reason to believe that disclosure will endanger the life or physical safety of a person, result in the destruction of evident, or cause serious jeopardy to a criminal investigation. Microsoft challenges . . statutes that set forth a court-supervised process for ensuring that obtaining electronic information from companies like Microsoft does not result in such adverse consequences. . . . Microsoft’s challenge effectively asks this court to adjudicate the lawfulness of thousands of . . . court orders from across the United States, without regard to the basis for . . . those orders, which necessarily vary from case to case.

In response, Microsoft argued in a Jan. 22 memo that the case presents “special circumstances” under which the U.S. Supreme Court has allowed third parties to assert Fourth Amendment rights. “This case has the requisite ‘special circumstances’ because Microsoft’s customers cannot effectively protect their own Fourth Amendment rights, which the Government violates under a cloak of secrecy,” Microsoft wrote in its supplemental brief on the motion to dismiss.

Elaborating on those arguments, Rummage said in court today that “the government has put us in a Catch-22. The law gives no notice of a search to our customers and says we can’t give that notice, but the government is saying you can’t raise that issue, only your customers can.”

Soskin and Kneedler didn’t directly address that point, but Kneedler rebutted, “You’ve heard them say, ‘There’s no case that says . . . ‘ That’s our point: there’s no case that says a party has jurisdiction to bring a challenge. It should challenge each individual court secrecy order.”

In an April blog post about the lawsuit, Brad Smith, Microsoft’s chief legal officer, wrote, “We believe that with rare exceptions consumers and businesses have a right to know when the government accesses their emails or records. Yet it’s becoming routine for the U.S. government to issue orders that require email providers to keep these types of legal demands secret. We believe that this goes too far, and we are asking the courts to address the situation.”

The American Civil Liberties Union (ACLU) filed a motion in May to join Microsoft’s lawsuit, but that motion was denied, so it filed an amicus brief instead.

In another suit between the Redmond, Wash.-based tech company and the U.S. government over issues of consumer privacy and cloud services, Microsoft in July won a case over the government’s attempt to access a customer’s data stored on a server in Ireland. In a big win for tech companies fighting to protect user data, an appeals court ruled that Microsoft couldn’t be forced to turn over emails stored on overseas servers.

The case is Microsoft Corp. v. United States Department of Justice, 2:16- v-00538-JLR.

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