Many civil rights groups, trade bodies and companies, including Google, Amazon, Cisco Systems, Apple and Twitter, have filed briefs in a federal court to back Microsoft’s move to prevent the indiscriminate use by U.S. law enforcement of orders that force companies not to inform their users about requests for their data.
Under the Stored Communications Act, a part of the Electronic Communications Privacy Act, companies can be compelled under 18 U.S. Code § 2703 to turn over certain consumer information to law enforcement for their investigations, sometimes without the requirement of notice to the customer whose information is targeted.
Under another statute, 18 U.S.C. § 2705(b), courts when serving warrants, subpoenas or court orders for customer information can also issue so-called gag orders to service providers at the request of the government to prevent them from notifying any other person of the existence of the warrant or similar order. Such gag orders can be issued if a court, for example, finds that there is a risk of destruction of evidence or flight of person from prosecution if alerted.
Under the Stored Communications Act, the government not only does not have a baseline duty to notify the person, but it can also gag the service provider, the Electronic Frontier Foundation and other rights groups have submitted in their filing Friday to the U.S. District Court for the Western District of Washington at Seattle.
In its lawsuit in April, Microsoft said courts had issued almost 2,600 such secrecy orders in the previous 18 months, with over two-thirds having no fixed end date.
The practice of issuing gag orders under section 2705(b) is so common that it is impractical to challenge each of the orders, as it would result in a high number of lawsuits each year, according to a ‘friends of the court’ brief filed by Apple, Twilio, Mozilla and Lithium Technologies.