Vole is suing the government saying that customers have a constitutional right to know if the government has searched or seized their property. But he government says that the case should be thrown out because… well security, you know.. terrorists, that sort of thing.
The government claims federal law allows it to obtain electronic communications without a warrant or without disclosure of a specific warrant if it would endanger an individual or an investigation.
If the logic behind this defence appears half-hearted then it probably is. There is no way that the government can claim that all its warrants need to be secret because they would endanger life. Its previous defences have also been rubbish. Last week, Microsoft persuaded an appeals court to overturn an order to turn over e-mails stored on servers in Ireland as part of a Manhattan drug prosecution.
However, the fact that the Justice Department is prepared to stand up in court and argue such weak cases indicates that it is fighting to keep tech companies on a tight leash. It is increasingly seeing tech companies as obstructing national security and law enforcement investigations.
This all started two years ago, when Edward Snowden’s disclosures about covert data collection showed what the government was actually doing.
Microsoft argues the very future of mobile and cloud computing is at stake if customers can’t trust that their data will remain private, while investigators seek digital tools to help them fight increasingly sophisticated criminals and terrorists savvy at using technology to communicate and hide their tracks.
The government claims Microsoft doesn’t have the authority to sue over whether its users’ constitutional protections against unlawful search and seizure are being violated, the U.S. said.
Secrecy orders on government warrants for access to private e-mail accounts generally prohibit Microsoft from telling customers about the requests for lengthy or even unlimited periods, the company said when it sued. At the time, federal courts had issued almost 2,600 secrecy orders to Microsoft alone, and more than two-thirds had no fixed end date, cases the company can never tell customers about, even after an investigation is completed.
Vole admits that there may be times when the government is justified in seeking a gag order to prevent customers under investigation from tampering with evidence or harming another person. But the rules authorising the gag orders is too broad and sets too low of a standard for secrecy.