On April 14, 2016, Microsoft sued the United States Department of Justice to challenge the search and seizure provisions of the 30-year old ECPA, because its customers “have a right to know when the government obtains a warrant to read their emails, and because Microsoft has a right to tell them.” (Microsoft v. DOJ, No. 2:16-cv-00538-JLR, Complaint (W.D. Wash. Apr. 14, 2016).)
Microsoft’s suit challenges the constitutionality of the antiquated Electronic Communications Privacy Act (ECPA). Specifically, Microsoft argues that Section 2705(b) of the ECPA violates the Fourth Amendment right of its customers to be notified that the government searches or seizes their property, and it violates the company’s First Amendment right to freely speak to its customers.
Microsoft’s suit, unlike Apple’s public fight with the FBI over access to a password-protected iPhone, does not center on just one dispute.
Rather, every year, the government conducts thousands of investigations into the contents of communications stored in the cloud, using the ECPA as authority. At the same time, the government places Microsoft and other service providers under “gag orders” that prohibit disclosure to the affected customers.