Microsoft asserts clients’ rights in FBI e-mail searches case
Microsoft’s effort to halt the Federal Bureau of Investigation’s (FBI’s) sneak-and-peak searches of e-mails may ride on whether the company is allowed to defend its customers’ constitutional rights.
The judge who will decide whether the case can go ahead told the company’s lawyers to be ready in court on Monday to deal with earlier rulings that undercut their arguments.
At stake is half of Microsoft’s case to block the US from secretly accessing customer data stored in the cloud, including e-mail. Microsoft drew support from tech leaders including Apple, Google and Amazon.com when it sued the US justice department in April.
The tech companies say the very future of mobile and cloud computing is at risk if customers cannot trust that their data will remain private.
The justice department argues it needs such digital tools to help fight increasingly sophisticated criminals and terrorists who are savvy at using technology to communicate and hide their tracks. Disclosing the searches would undermine investigations and put Americans at risk, they argue.
A decision for the US would give an early victory to President Donald Trump, who said during his campaign that he would compel technology companies to co-operate.
The case may never reach that point unless Microsoft wins the argument that it has the ability to sue — or standing — to protect customer privacy.
RIGHTS-CASE BARRIER
“Standing has been a barrier in cases that seek to vindicate people’s privacy rights,” said Jennifer Granick, a Stanford Law School professor.
“It’s a serious issue in conducting constitutional litigation, and this case is no different.”
Four court decisions listed by US district judge James Robart in Seattle all reached the same conclusion — Fourth Amendment protections can only be cited by individuals and not vicariously by third parties. The most recent was a 2014 ruling that the family of a driver who was killed by police after a highspeed chase could not invoke that right on his behalf related to a lawsuit over his death.
Microsoft’s lawyers may have anticipated the Fourth Amendment challenge in their complaint, stating that the government’s silent searches of user data have directly injured it by “eroding the customer trust”.
The industry’s push against government intrusion into customers’ private information began in the wake of Edward Snowden’s 2013 disclosures about covert data collection that put them all on the defensive.
FREE SPEECH
The Redmond, Washingtonbased company concedes there may be times when the government is justified in seeking a gag order to prevent customers under investigation from tampering with evidence or harming another person.
Still, the statute is too broad and sets too low a standard for secrecy, Microsoft contends, arguing regarding the other half of its case that its own freespeech rights are being violated.
The Electronic Frontier Foundation, a privacy group supporting Microsoft in the case, fears a ruling that the company cannot sue could mean no one will ever have the right to file a data privacy lawsuit under the Fourth Amendment.