Tech Giants Unite Against Government Gag Orders

John Lister's picture

Several tech giants have backed Microsoft in its attempt to overturn what it calls a gagging order over government data requests. The company says such orders are a double breach of the constitution.

The case relates to the Store Communications Act, which is related to the Electronic Communications Privacy Act. In a nutshell, the law allows law enforcement officials to get a court order forcing tech companies to hand over details of customer activity, if it relates to an ongoing investigation.

The controversial part is that the government can also ask the court to order the tech company not to tell the suspect it has handed over the data. The legal reasoning is that this prevents a suspect destroying evidence or fleeing the country before officials have built enough case for an arrest or charges.

First And Fourth Amendments In Question

Microsoft says such orders breach its right under the First Amendment, because stopping it informing customers is a restriction on free speech. It also says the orders breach the Fourth Amendment, which gives people the right to know when their property has been searched. Microsoft believes digital content counts as property in this situation.

According to Microsoft, while there's a balance between fighting crime and personal privacy, the way the law works now is unfairly weighted in favor of law enforcement. It says the problem isn't just the sheer number of orders, estimated as 2,600 in the space of the 18 months leading up to April. (Source:

Open-Ended Orders Objectionable

Instead Microsoft wants specific changes including the government being required to give more proof that the gagging order is genuinely necessary, and a big restriction on orders that don't have an expiry date. It says around two-thirds of orders effectively last forever.

That argument has now been backed by a joint submission to the court of a host of companies including Apple, Google and Amazon, plus several media groups and big businesses. (Source:

The case is currently going through the federal court system. Assuming both sides continue to push the issue, it seems highly likely it would make a suitable case for the Supreme Court.

What's Your Opinion?

Do you agree with Microsoft's argument against the gagging orders? Does the need to avoid tipping off suspects override free speech and privacy laws? Is this a case where a firm principle should win the day, or is it just a matter of fine-tuning a balance?

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jcgrande's picture

There always is a need for comprehensive checks and balances for the invasion of someone's privacy. The enforcement agencies need to prove their case to a Judge or Independent elected Legislature committee who can then issue a legal directive to an ISP to provide information for limited time and for a case by case basis.

matt_2058's picture

I agree with MS on this one. A person has a right to know if someone is accessing what is supposed to be private information. This isn't something like property records that are public information. Besides, if the LE agency has gotten the info they were looking for, what can the suspect do to hurt their case? LE already has a copy of it, right?

This is the digital age. Everything the person is doing online can be copied and saved. No need to get their hands on an actual printed version for it to count.