Tag Archives: Fourth Amendment

Microsoft Sues DOJ

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.

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99 Problems

Have you ever heard of the song “99 Problems” by Jay Z?  If you need to refresh your memory, here are two links to YouTube.  This first link is of the song 99 Problems.  This second link has the song lyrics posted.

Saint Louis University Law Journal published an article by Professor Caleb Mason who does a line-by-line analysis of the song.  The full article is available here.  The Huffington Post wrote an analysis and summary of the law article and the song.  The article is available here and it includes a YouTube video of Jay Z dissecting the lyrics.

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Case Blurb: United States v. Antoine Jones

The Supreme Court unanimously decided on January 23, 2012 that attaching a GPS tracker to a car is considered an encroachment on a protected area and thus would require a search warrant.  In this particular case, because the police had not obtained a search warrant when they attached a GPS tracker to Antoine Jones’ Jeep, the Justices held that the evidence and information obtained from the GPS tracker was a violation of the Fourth Amendment and considered an unreasonable search and seizure.

Above the Law has a quick post about this monumental decision available here.  The Washington Post writes about the warrant requirement for GPS trackers here.  The original Supreme Court decision is available in PDF format here.  My friend, Patrick McGrath, published a law journal article on GPS tracking with the Journal of High Technology Law, and the article is available here.

It will be interesting to see what other electronic devices require a warrant under the Fourth Amendment once this decision is implemented into the court system.

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Case Blurb: United States v. Musgrove

Police officers entered a defendant’s home with the defendant’s permission.  The officers did not have a search warrant.  While in the home, and while the defendant was in the other room, one of the police officers moved the mouse next to the defendant’s computer which took the computer out of screensaver mode.  The contents of the computer screen incriminated the defendant.

The court in the Eastern District of Wisconsin held that the officers had committed an illegal search.  The information obtained from the computer screen was suppressed.

The Volokh Conspiracy and the Fourth Amendment both wrote really great blog entries about the case.  Please check out the Volokh Conspiracy’s post and the Fourth Amendment.com’s post.

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