ACLU asks to join Microsoft in Fourth Amendment fight against DOJ

Attorneys with the American Civil Liberties Union asked a federal judge Thursday for permission to take part in a Fourth Amendment lawsuit brought by Microsoft last month concerning the U.S. government’s use of gag-orders, the likes of which have prevented the tech titan from telling thousands of customers annually that their accounts are under surveillance.

The ACLU’s motion to intervene, if approved, would allow the civil liberties group to join Microsoft in challenging the Justice Department’s reliance on filing secret gag-orders when executing court-approved requests for the communications and account data of the company’s customers.

Microsoft said when it filed suit last month that roughly one-third of the 5,624 requests for user data filed by law enforcement between September 2014 and March 2016 were accompanied by gag-orders that indefinitely kept the company from telling customers that their account information has been sought by authorities. 

At the time of the filing, Microsoft’s chief legal officer, Brad Smith, said the company believes its customers “have a right to know when the government accesses their emails or records.” Because the ACLU uses several of Microsoft’s products, the civil liberties group said they should be allowed to argue on Microsoft’s behalf.

In Wednesday’s motion to intervene, the ACLU said that their Fourth Amendment right, as customers of Microsoft, should require the government to give notice of any search or seizure affecting its communications.

ACLU staffers include attorneys whose jobs involve discussing sensitive details with clients, colleagues and witnesses, the organization said, often concerning litigation strategy and other sensitive information.

“For this reason, Movants have an acute interest in ensuring that the government’s demands for the records of Microsoft’s customers are constitutional,” the ACLU wrote.

“A basic promise of our Constitution is that the government must notify you at some point when it searches or seizes your private information,” Alex Abdo, a senior staff attorney with the ACLU Speech, Privacy, and Technology Project, said Wednesday. “Notice serves as a crucial check on executive power, and it has been a regular and constitutionally required feature of searches and seizures since the nation’s founding.”

A spokesperson for Microsoft said in a statement that the company appreciates the ACLU’s support, ZDNet reported. A spokesperson for the Justice Dept. declined to comment.