Slashdot Mirror
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president and chief legal officer, recently criticized the 30-year-old Electronic Communications Privacy Act as outdated during his testimony in February before the U.S. House Judiciary Committee -- bringing along IBM's first laptop, released the same year, to help illustrate his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."
But it applies to people ... citizens, really ... and corporations are not people.
Even state secrets are subject to FOIA acts and even if decades pass they are eventually released. These should not be any different.
"recently criticized the 30-year-old Electronic Communications Privacy Act as outdated during his testimony in February before the U.S. House Judiciary Committee -- bringing along IBM's first laptop, released the same year, to help illustrate his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."
This seems like an odd analogy to make. Did he ride a horse to the courthouse to show that the fourth amendment is outdated?
If you post as Anonymous Coward, don't expect a reply.
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! --
against the people.
Maybe tech companies should offer a warrant canary service to all users. Just sent the same e-mail to the user everyday "In the last 2 weeks we have not received an order under Section 2705(b) of the Electronic Communications Privacy Act about you" and stop sending it for 2 weeks when data is being demanded.
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.
Vai à merda putinha da Reweb.
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.
I swear Ill give Windows another shot...
Private citizens, for the most part, don't have a clue. They have barely enough financial wherewithal to manage their household funds and savings accounts (more than half can't even manage that). They have barely enough philosophical muscle to act justly when dealing with family and co-workers...understanding the enterprise of law is as far beyond them as quantum mechanics.
The wealthy families who have, for generations, been owning and running 90% of the economy have been living and breathing these concepts since birth. They have plenty of skin in the deal too. They, and only they, should have any real voice in government.
They may be utterly corrupt, selfish, sociopathic, and downright evil. But unlike the rest of us, they are also competent.
I admire this effort to look out for my privacy but it's too little and waaaaaaaay too late. The travesty of Windows 10, cooperation with the Chinese government, rolling over for the NSA, peering agreements that include customer data, privacy agreements detailing essentially inevitable loss of all personal data, abuse of certification programs... Microsoft hasn't cared about my privacy for the last 41 years and now suddenly they want to give precisely one fuck?
Sorry Microsoft, I know a shit sandwich when I bite into one. If you want my trust here's what you need to do: Divest the software you want me to trust into a new department. Enforce complete transparency in that department. Enforce a top-to-bottom ethics code in that department. Offer a transparent reward for whistle-blowers there, overseen by an independent privacy-minded organization. Do all this and I'll trust the software from that one department.
If video games influenced behavior the Pac Man generation would be eating pills and running away from their problems.
investigators seek access to emails and other cloud data
I'd rather Microsoft made sure that my data was fully encrypted and I held the only key.
In such a case, who cares about secrecy orders?
Apple fights being forced to decrypt a phone and got a ton of great press.
So, naturally MS wants some of that action and again, naturally fails hard.
If MS gave even 1 shit about privacy, they wouldn't have filled Windows 10 with spyware.
The warrant canary is a stunt designed for marketing only. Do you really think any judge is stupid enough to view deleting the warrant canary as anything other than both disclosing what they've been compelled not to disclose, and doing so in a manner which shows contempt of the court? I've got nothing, at all, to defend you against either charge if you get tossed for such.
A) Do you have evidence that courts other than the FISA court are handing out warrants with gag orders full scale to such organizations
B) Do you have any evidence at all to support the implied assertion that the FISA is violating it's charter and Title 50 by issuing warrants authorizing the surveillance of us persons?
C) Are you bright enough to understand that foreign intelligence includes a lot more than just "the terrorists" and should include, among other things, looking for evidence of other state actors doing nefarious things?
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
There's always a but.
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
These two things are not mutually exclusive. Microsoft can be receiving thousands and it may still be the exception to the rule. Thousands sounds like a lot, but percentage-wise, thousands of requests still isn't all that much at the scale Microsoft is operating at. It probably seems a lot worse to Microsoft than to anybody else because I presume Microsoft is footing the bill. You're probably better off attacking it on that principle or perhaps more on the spying principles rather than the raw numbers of requests.
I think the more interesting question here is what happens when the executive branch just makes up a mechanism of enforcement and holds you to it? It's not like you can tell them no and in general, it's difficult to prove harm on a mechanism of enforcement (especially one laid out this way). There's no specific law related to it because they just made it up either via secret interpretation of law or fiat. Having standing is the major reason why we're in the position we're in with spying etc. - the executive was not supposed to effectively make shit up.
Further it seems like when these cases do make it in front of judges, judges are drunk on muh terrorism rhetoric as well. In many cases this means the two branches that should be checking and balancing one another are in collusion. And since the media is generally the mouthpiece of the state and lies about as much as the state does, nobody trusts that even if they were to apply pressure like they should be. Congress is worthless in general.
So what are we to do? We haven't been able to challenge the executive in courts. When we have, we've gotten almost nowhere. We can't get Congress to do anything. Even if we could, the establishment (consisting mostly of moneyed interests) ensures that politics is a fucking football game or some other kind of entertainment with clear good guys and bad guys. The people generally accept that premise and not because they're stupid, but because it's human nature. The entire fabric of the country is being undermined by the massive information disparity between the NSA and everyone else. It's not hopeless but something needs to give to start fixing these problems. I have no idea how to do that.
By this I mean, are they being injured by this law? If not, then it seems like the courts might throw this out. But if they have been injured, then admitting that they have been injured is tantamount to admitting that they have received such orders, which they are expressly not allowed to do.
I don't know what happens if Microsoft is unable to state whether or not they have standing to sue or not. Admitting they aren't (which if they have not been subject to such orders - unlikely) would be legal. And refusing to say one way or another amounts to admitting that such orders exist, since if no such orders existed, they would be free to say so.
This all makes my head spin..
You don't have constitutional protection on things you don't own, AKA everything out there in the cloud.
Basically, there's a concept that if someone else is holding your stuff, then it's not private, and therefore, they only need a subpoena and not a warrant to get it ... and they don't need to notify the person whose stuff it is (so there's no chance for them to get a lawyer to try to stop it).
This is why someone concerned about their privacy would prefer hosting their own mail server (in their own home, not at a colo) vs. using one of the many 'cloud' offerings:
https://www.worldprivacyforum....
But you probably don't want to host your own e-mail if you're a government official, and there's any chance of anyone sending work e-mails there.
Build it, and they will come^Hplain.
I see no problem in gagging the warrant for a year - or even two.
But if after two years, you:
1) Have not arrested, tried and charged the man,
2) Have not even found evidence of a crime, sufficient to extend the warrant
and
3) Are so lazy and uncaring of legal rights that you think you shouldn't have to go to court and prove the right to extend the gag order.
Then:
A) You are a fool that should be fired
and
B) You are not trying to prevent criminals and enemies of the state from figuring out what you are dong, but instead are trying to prevent the law abiding American Public - including the Courts - to understand how badly you are violating their rights.
--------
All gag orders on warrants should have a time limit - of less than 5 years.
The government should be required to provide a report on the results of all criminal warrants after those 5 years, listing how many resulted in convictions, how many prosecutions, how many were worthless, etc. etc. etc.
Track and graph them - and requiring lawyers with bad records of too many worthless warrants to explain or be fired.
It also lets the courts sue for harassment when we find out the SOB put a gag warrant on his ex-wife's new lover.
excitingthingstodo.blogspot.com
Kind of funny...that a operating system that has had back doors in it since windows 95 and has taken billions of dollars from the government to get search results ......yea I feel the love!!! Bravo PR people the masses will think you are apple now....just stand up and yell" me too" while you are at it....
They have profit centers based on getting paid by the government to compromise your equipment - this is obviously just PR - behind the scenes nothing is changing - you do not own your phone or computer.
should be executed for treason
I must admit that I have been an M$ basher but (unless their only motivate is to reduce the cost of these requests) it is good that they are taking this action and hopefully something good can come out if it.
Probable outcome is that the court will rule Microsoft lacks standing because their rights aren't being violated. However those whose rights ARE being violated can't sue because no one can tell them they are subject of one of these orders.
It would be interesting to see Microsoft fight this with an army of canaries, one or more for each of its customers.
Perhaps M$ will vacate all those gag orders it forced its victims to sign.
Microsoft has no standing to bring the second argument.This is the catch 22 of this situation, without being informed nobody with standing can object. But it does seem that surveillance with a warrant is legal. It would entirely undermine the investigative power of surveillance to be legally obliged to inform the target.