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Microsoft Sues US Justice Department, Asks Court To Declare Secrecy Orders Unconstitutional (geekwire.com)
Todd Bishop, reporting for GeekWire: Microsoft is suing the U.S. Justice Department, asking a federal judge to declare unconstitutional a provision of U.S. law that lets the government keep Microsoft and other tech companies from informing their customers when investigators seek access to emails and other cloud data. The suit, filed moments ago in U.S. District Court in Seattle, targets Section 2705(b) of the Electronic Communications Privacy Act, which allows the government to seek and obtain secrecy orders preventing companies from letting their customers know when their data is the target of a federal warrant, subpoena or court order. Brad Smith, Microsoft's president and chief legal officer, recently criticized the 30-year-old Electronic Communications Privacy Act as outdated during his testimony in February before the U.S. House Judiciary Committee -- bringing along IBM's first laptop, released the same year, to help illustrate his point.Microsoft argues that these "indefinite gag orders" violate the First Amendment rights to inform customers. Furthermore, the company adds that the law also "flouts" the Fourth Amendment, which requires the government to give a notice to the concerned person when his or her property is being searched or seized. "This is a First Amendment fight that needed to get picked and I'm glad Microsoft picked it. Just as in the real world with physical seizures, secrecy in digital seizures should be the exception and not the rule. Yet as the Microsoft complaint shows, it's receiving thousands of law enforcement gag orders every year and more than two-thirds of them are eternal gags with no end data," said Kevin Bankston, internet freedom advocate and digital rights lawyer. "This is clearly unconstitutional, yet with so many orders per year, it makes sense to strike at the root with a facial challenge to the law rather than try and challenge them all individually. And based on previous similar cases around gag orders in national security cases, I think they'll succeed in striking this overbroad law down."
Even state secrets are subject to FOIA acts and even if decades pass they are eventually released. These should not be any different.
But spying on Americans is unconstitutional as they have done it.
It's sad that SCOTUS won't allow Americans to sue for unconstitutional actions to collect their data, but will allow American companies (in the loosest sense of the term) to do so.
-- Tigger warning: This post may contain tiggers! --
It's sad that SCOTUS won't allow Americans to sue for unconstitutional actions to collect their data, but will allow American companies (in the loosest sense of the term) to do so.
The difference (probably) is in that Microsoft has actual evidence of harm done to them and their customers so they have standing to sue. Microsoft would be aware of these gag orders and what the government was requesting from them. Additionally it costs a measurable amount of money for Microsoft to comply with these search orders so there is a way to gauge A) the amount of harm done and B) the cost of compliance. Since Microsoft should be able to show some amount of harm (even if small) then they would have standing to sue.
While I agree that it's kind of shitty that citizens are in this catch 22 where they can't sue because they don't have standing but they can't get/prove the information to establish that they do have standing because the only means to get it is to sue. But if Microsoft can short circuit this problem on behalf of citizens then perhaps we will end up with a resolution after all.
Sometimes it's necessary to maintain the secrecy of an investigation, like to find out who a terrorist's conspirators are. That said, Slashdot is primarily concerned with ensuring that terrorists have privacy to plot their attacks, that they have strong first, second, and fourth amendment rights, and that the contents of dead terrorists' phones aren't decrypted by investigators. Sorry, Slashdot, but the Bill of Rights was never meant to protect treason.
Microsoft says in the suit that federal courts have issued nearly 2,600 secrecy orders to the company over the past 18 months, and more than two-thirds of those orders didn’t have a defined ending date.
I seriously doubt that the 2,600 orders that Microsoft has received in the past 18 months, are all for foreign adversaries.
And even if they are for an American who the law thinks is a terrorist, the law needs to respect that person's rights. Otherwise if the person is convicted the conviction will eventually be overturned.
If we start ignoring all of our constitutional rights because of terrorism, then what are we fighting for at that point?
and also... for the children.
The Bill of Rights WAS meant to protect someone from being prosecuted for treason unless the government acts within the bounds of the Bill of Rights. Namely, right to an attorney, right to a trial, right to warrants, right of free speech, right to cross examine, right to review evidence, right for refuse to board soldiers in your home, right to refuse to submit to a state religion, right to publish articles in the press that do not favor the government.
Any person could make an argument that X is treason or terrorism or any other thing you want to call it. Congress can pass any law they want defining that X is unlawful. They can argue until they are blue in the face that the public needs to be protected from X and in order to protect the public from X that certain rights need to be ignored and bypassed... but guess what... rights are SUPPOSED to trump that. If I am a traitor, prove it without violating my rights. Then and only then can you punish me.
If you sacrifice liberty for security, you deserve neither. && Government should stop legislating morality. && Anytime someone says "There should be a law..." there probably shouldn't.
Laws are supposed to exist to prevent your exercise of rights from affecting my rights. If a person doesn't interfere with the rights of another, there is no need to legislate or prosecute.
Even state secrets are subject to FOIA acts and even if decades pass they are eventually released
What good does a FOIA act do for a citizen if they can't get an answer until decades later? The effects of the gag order and the information they are seeking happen presently. Denying a citizen the right to face their accuser in a timely manner is functionally equivalent to declaring them guilty of whatever they are accused of. The notion of a permanent gag order seems blatantly unconstitutional, not to mention immoral.
... right for refuse to board soldiers in your home,
Important point about the Third Amendment: The soldier didn't just eat your food and sleep on your couch. He served as a government spy. Listened in on your conversations, went through your papers and mail when you weren't looking, reported all to his superiors in the military and intelligence services.
He was the revolutionary-era meat version of spyware installed by the government on your computers.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way