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Apple Files Amicus Brief Supporting Microsoft's Lawsuit over the Government's use of 'Indefinite Duration Gag Orders'

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Back in April of this year Microsoft sued over the right to inform customers that the government was spying on their emails. By filing the suit, Microsoft took a more prominent role in that battle of privacy, dominated by Apple's fight with the FBI. The lawsuit argued that the government is violating the U.S. Constitution by preventing Microsoft from notifying thousands of customers about government requests for their emails and other documents. Late yesterday Apple and Mozilla were among other tech companies who filed amicus briefs with the court supporting Microsoft. The tech duo argued that the gag order provisions harms US businesses abroad, particularly in Europe, where disclosures are necessary. Apple admitted that it had received around 590 "unlimited or indefinite duration" gag orders so far this year which is at the heart of the issue regarding 'secrecy orders.'


Reuters reported late yesterday that "Technology, media, pharmaceutical and other companies, along with major corporate lobbying groups, filed legal briefs on Friday in support of a Microsoft Corp lawsuit that aims to strike down a law preventing companies from telling customers the government is seeking their data."


Friday was the deadline for filing of friend-of-the-court briefs by nonparticipants in the case. The filings show broad support for Microsoft and the technology industry in its latest high-profile clash with the U.S. Justice Department over digital privacy and surveillance.


Microsoft's backers included the U.S. Chamber of Commerce, the National Association of Manufacturers, Delta Air Lines Inc, Eli Lilly and Co, BP America, the Washington Post, Fox News, the National Newspaper Association, Apple Inc, Alphabet Inc's Google, Inc, the Electronic Frontier Foundation and many others.


The Justice Department argues that Microsoft has no standing to bring the case and the public has a "compelling interest in keeping criminal investigations confidential." Procedural safeguards also protect constitutional rights, it contends. A Justice Department spokesman declined comment on Friday's filings. For more on this, see the full Reuters report here.


The Heart of the Matter


Microsoft is trying to fuel a public debate about the frequent use of 'secrecy orders' which is at the heart of their suit.


The original article by the New York Times on this case helps us understand the bigger issue that Microsoft is trying to expose. "Microsoft is drawing attention to legal issues that have become more acute as tech companies move their customers' personal and business information into so-called cloud computing systems. The largest such digital storehouses of personal email and documents are operated by big tech companies like Microsoft, Google and Apple.


Seizing information from file drawers or personal computers used to require entering a building to examine paper or a hard drive. Typically, the target of an investigation knew about it.


Not so in the cloud computing era, when investigators can bypass an individual and go straight to the company that hosts that information. And when courts issue secrecy orders, often with no time limit, a target may never know that information was taken.


Microsoft, in its suit, contends that the government has 'exploited the transition to cloud computing as a means of expanding its power to conduct secret investigations.'


Judges grant the secrecy orders. Microsoft sees only the warrant for the information demanded and not the argument made by the prosecutors to justify a gag order.


But the Microsoft legal team looked at the high percentage of secrecy orders granted in the year and a half through March of this year, and concluded that prosecutors often relied on a vague standard that there was a "reason to believe" that disclosure might hinder an investigation.


Microsoft, Mr. Smith said, 'readily recognizes that nondisclosure orders are appropriate and necessary' when there is a risk of endangering a person's life or that crucial evidence may be destroyed, for example.


'What concerns us is the low standard the government has to bear and the absence of a time limit,' Mr. Smith added.


About two-thirds of the secrecy orders Microsoft received in the span it audited had no time limits. In the physical world, so-called sneak-and-peek warrants for secret searches are granted to look at documents without notifying a target. But most secrecy orders delay notification for a fixed period of time, typically 30 to 90 days, and detailed evidence is required for any extensions." This isn't the case anymore when it comes to cloud storage and the game has changed. Microsoft thinks it's time to revisit the whole issue and rightfully so.


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