Microsoft allowed to sue US government over gag orders, court decides

Microsoft previously argued that gag orders are often used for crimes not involving national security.
Written by Zack Whittaker, Contributor

(Image: file photo)

Microsoft can pursue its legal challenge against the US government, a federal court has ruled, in a case in which the software giant argues that government gag orders are unconstitutional.

The judge said Microsoft made a reasonable argument that gag orders, issued by government agencies to prevent the company from telling the customer of an investigation, violate its constitutional rights to free speech.

Judge James Robart upheld those First Amendment rights in his ruling Thursday, but declined Microsoft's Fourth Amendment argument against unreasonable searches and seizures, saying that overturning the precedent would need to go to a higher court.

"Microsoft alleges that indefinite nondisclosure orders implicate its First Amendment rights because the orders impinge on its right to speak about governmental affairs and the public's right to access search warrants," said Robart in his ruling.

Microsoft brought the case in April last year, arguing that the government should not be allowed to prevent a company from telling a customer when their data has been turned over to investigators.

These gag orders can be used in cases where national security is at risk, such as in terrorism investigations, but are often used for low-level cases and non-national security related matters.

According to the briefs filed by dozens of US organizations, including Apple, Fox News, Twitter, thousands of gag orders were for an "unlimited or indefinite duration," meaning the companies may never be allowed to disclose the orders to anyone.

In Microsoft's case, it was in possession of almost 2,600 separate secrecy orders.

"We're pleased this ruling enables our case to move forward toward a reasonable solution that works for law enforcement and ensures secrecy is used only when necessary," said Brad Smith, Microsoft's chief legal officer in a statement.

A spokesperson for the Justice Dept. was not immediately available.

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