ACLU seeks to join Microsoft in demanding gov't notify customers of email, cloud storage searches

The American Civil Liberties Union (ACLU) Thursday petitioned a federal court to join in Microsoft's lawsuit against challenging the U.S. government's liberal use of the aging Electronic Communications Privacy Act (ECPA) as justification for obtaining search warrants for customer data and issuing accompanying gag orders that prevent the tech giant from informing its customers of government access. 

In a motion filed in federal district court, the ACLU noted its own position as an organization dependent on Microsoft products  and contended that under the Fourth Amendment the government should notify tech companies' customers separately.

“A basic promise of our Constitution is that the government must notify you at some point when it searches or seizes your private information,” Alex Abdo, a senior staff attorney with the ACLU Speech, Privacy, and Technology Project, said in a release. “Notice serves as a crucial check on executive power, and it has been a regular and constitutionally required feature of searches and seizures since the nation's founding. The government has managed to circumvent this critical protection in the digital realm for decades, but Microsoft's lawsuit offers the courts an opportunity to correct course.”

In the suit filed in April in Seattle, the tech giant characterized government's actions and ensuing gag orders as unconstitutional, a refrain routinely voiced by tech firms.

“The statute violates both the Fourth Amendment, which affords people and businesses the right to know if the government searches or seizes their property, and the First Amendment, which enshrines Microsoft's rights to talk to its customers and to discuss how the government conducts its investigations—subject only to restraints narrowly tailored to serve compelling government interests,” Microsoft said in the suit, contending that “people do not give up their rights when they move their private information from physical storage to the cloud.”

According to court documents filed Thursday, the ACLU said that while Microsoft and other tech companies have established policies of notifying customers “when not precluded from doing so by ‘gag orders,'” the policies should not be “a substitute for government notice.”

The civil rights' organization argued that it “has a reasonable expectation of privacy and protected possessory interests in its electronic communications stored by Microsoft,” the filing said. “If the government is not enjoined from obtaining the electronic communications of the ACLU and other individuals without notice, they will suffer irreparable injury to their constitutional right to be free from unreasonable searches and seizures.”

Among other actions, the ACLU asked, for “appropriate injunctive relief, including, but not limited to, a permanent injunction prohibiting the government from obtaining electronic communications, including those of Plaintiffs–Intervenors, under ECPA…notice.”

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