Microsoft and the Justice Department sparred in court in Seattle on Monday over whether the software company had the right to push back against law-enforcement searches of customers’ data.
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The Redmond company sued the federal government last year, arguing that frequent court orders for customer data — many of which come with a prohibition on telling the person that the government came calling — violate the Constitution’s privacy protections.
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The Justice Department replies that such gag orders on searches of digital information are necessary to avoid tipping off potential suspects, including in sensitive cases relating to child pornography or terrorism.
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But at issue in U.S. District Court on Monday was a more preliminary concern: whether Microsoft had the authority to sue on behalf of its customers in the first place.
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The Fourth Amendment, which guards against unreasonable government search and seizure, is generally wielded by individuals on their own behalf.
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Cases cited by U.S. District Judge James Robart, who is presiding over the dispute, hold that Fourth Amendment protections cannot be vicariously asserted by other parties except under special circumstances.
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Robart didn’t rule on the issue Monday. He said a written opinion would follow, though he didn’t say when.
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Stephen Rummage, an attorney representing Microsoft, said the case presented a special circumstance that gave the company standing to sue. Many of the people whose Microsoft accounts are searched are never made aware the search occurred, preventing them from asserting their own rights, he said.
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People need to get notice when the government comes knocking at the door — Microsoft’s door in this instance, said Rummage.
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Servers maintained by Microsoft, Google, and other technology giants have gone a long way toward replacing desk drawers or file cabinets as custodian for personal effects, including health-care and tax records, and love letters, Rummage said.
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Those are the kind of things that historically have…