In order to sue the Department of Justice, Microsoft has brought out the big guns by hiring law firms Covington and Burling LLP, where partner James Garland used to work for former Attorney General Eric Holder, and Davis Wright Tremaine LLP. Yesterday, Microsoft’s complaint was filed in the Western District Court of Washington State and the complaint is available on the Wall Street Journal website here. The complaint is also available on Pacer, but the Wall Street Journal has the free version.
In the past, the U.S. government has requested information about certain users from Microsoft, presumably when warranted Microsoft complied with the production of information, and then the U.S. government could temporarily bar Microsoft from telling its users about the request for data. Under 18 U.S.C. Section 2705, a governmental entity, with a court order, may delay notification to customers for a period not exceeding 90 days if the government has reason to believe that the notification would result in adverse results. So, a customer would not be notified that a provider, like Microsoft, supplied information to a governmental authority until well after the production of information. Adverse results include endangering the life or physical safety of an individual, flight from prosecution, destruction of evidence, tampering with evidence, intimidation of a potential witness, or otherwise seriously jeopardizing an investigation or unduly delaying trial.
Microsoft argues that this is unlawful and that tech companies should be allowed to tell their users when their cloud database and private information has been turned over to the government. The U.S. government may argue that the disclosure to users would compromise an investigation. However, Microsoft asserts that the U.S. government’s behavior is a violation of the Fourth Amendment. But, is it?
This lawsuit is no easy feat. It can be difficult to sue the U.S. government due to sovereign immunity issues. Furthermore, the lawsuit boils down to a fundamental right to privacy argument that seems almost basic and may merit standard Fourth Amendment treatment regardless of all the discussion about cloud computing and the digital age.
Under F.R.C.P. 12, a U.S. governmental agency has 60 days from when they were served to file an answer. It will be interesting to see who from the DOJ is assigned to the case and what the DOJ’s answer will be.
Furthermore, this case is not likely to settle. Rather than Microsoft’s typical way of hiring lobbyists to change the law through Congress, it looks like Microsoft is using the courts and this lawsuit to change Fourth Amendment law. Read more about this new case in this Wall Street Journal article here.