ACLU Can’t Intervene in Microsoft Privacy Lawsuit

SEATTLE (CN) - The American Civil Liberties Union can't intervene in Microsoft's surveillance lawsuit against the Justice Department, but it can file an amicus brief, a federal judge ruled.

Microsoft claims it is unconstitutional to forbid tech companies from telling customers when the government reads their emails and other data, and it seeks an order invalidating that part of the Electronic Communications Privacy Act.

The controversy of government surveillance of user data from tech companies has heated up in recent years, with many electronic privacy advocates saying that technology is far outpacing the law.

Following the deadly terror attack in San Bernardino last year, Apple refused to allow the government to unlock the shooters' iPhones, saying doing so would "set a dangerous precedent."

Microsoft appears to be taking a similar stance in its April lawsuit, this time challenging the government's "gag orders" against tech companies informing their customers when agents request information.

"People do not give up their rights when they move their private information from physical storage to the cloud," Microsoft's complaint states.

Likening the storage of information in a cloud to "file cabinets and desk drawers" in the pre-computer era, Microsoft says that the government has to give notice when it seeks private information as it did before storage went digital.

The ACLU moved to intervene in the case in May, arguing as a Microsoft customer "to vindicate [its] Fourth Amendment right to notice of searches and seizures that implicate their constitutionally protected privacy interests."

The Justice Department called the civil liberties group's claims "speculative" because they "would not provide the Court with additional concrete context for the constitutional challenges here."

U.S. District Judge James Robart agreed with the Justice Department that the ACLU could not prove it had a right to intervene in the case.

"Merely pointing to the different roles they occupy — the ACLU as customer and Microsoft as a public company — does not explain why Microsoft will not adequately represent the ACLU's interests, particularly when they share this same objective," Robart wrote in an order Monday.

Microsoft "is in the best position to provide the court with factual background" about the allegedly unconstitutional part of the Electronic Communications Privacy Act, the judge held.

Robart did, however, grant the ACLU's request to file an amicus brief in the case.

In its lawsuit, Microsoft says in the past year and a half, almost 2,600 secrecy orders have been filed in federal courts that "silence" the company from talking about warrants and other legal procedures involving its customers' data.

"These twin developments — the increase in government demands for online data and the simultaneous increase in secrecy — have combined to undermine confidence in the privacy of the cloud and have impaired Microsoft's right to be transparent with its customers, a right guaranteed by the First Amendment," the complaint says.

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