John P. Carlin and Joseph Roth Rosner
Privacy + Data Security
Add another chapter to the ongoing debate over government access to private communications. Last week, the District Court in the Western District of Washington rejected the Government’s motion to dismiss Microsoft’s suit challenging the constitutionality of certain secrecy provisions of the Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq.The decision comes just one week after another high-profile SCA decision in which a Pennsylvania Federal Magistrate Judge rejected Google’s challenge to warrants seeking access to foreign-stored user data.
Presently, law enforcement officials can request user data under the SCA from service providers such as Microsoft, and then seek an indefinite non-disclosure order under § 2705(b) of the Act if there is “reason to believe” notification would result in the destruction of evidence, put a witness or other individual in danger, or otherwise seriously jeopardize the investigation or delay a potential trial. Such non-disclosure orders preclude Microsoft from informing users about the government’s access to their information. The crux of Microsoft’s suit was that § 2705(b) on its face and as applied is overbroad and violates the company’s First Amendment right to communicate with its customers and the general public. In addition, Microsoft contended, the provision violated its users’ Fourth Amendment rights to know about government search—and seizure of their property—and asserted third-party standing to vindicate those rights.
The Department of Justice moved to dismiss the lawsuit for lack of standing and failure to state a claim. The Court disagreed, holding that Microsoft had standing to maintain the suit because the complaint sufficiently alleged Microsoft had been subject to thousands of such non-disclosure orders and would continue to be subject to this practice in the future absent a declaratory judgment. The Court found that Microsoft had sufficiently pleaded a violation of its First Amendment rights based on claims that § 2705(b) was overbroad, constituted an impermissible prior restraint on free speech, and was unconstitutional as applied. While it declined to dismiss the First Amendment claims in the suit at this juncture, the Court sided with the Government’s argument that Microsoft could not proceed in an action to vindicate Microsoft’s users’ Fourth Amendment rights based on a theory of third-party standing.
This District Court’s ruling comes at a time of increased scrutiny of the SCA. Originally passed in 1986, the SCA has been viewed by many as outdated and incompatible with society’s current widespread reliance on electronic communications. Two recent court decisions have reached different conclusions in analyzing whether the SCA enables the government to access communications stored abroad consistent with the Fourth Amendment. On Capitol Hill, the Email Privacy Act recently passed the House of Representatives for the second time. The bill would reform the so-called “180-day rule” in the current SCA that authorizes the Government to access emails and other stored communications older than 180 days without first obtaining a warrant. The fate of the House bill in the Senate is uncertain.
 Microsoft Corp. v. United States Dep’t of Justice, No. 2:16-cv-0538-JLR, 2017 WL 530353 (W.D. Wash. Feb. 8, 2017).
 For more information, see our Client Alert on the recent Google SCA order.
 In addition to the Google matter above, see our Client Alert on the Microsoft SCA Second Circuit decision.
 H.R. 387 – 115th Congress (2017-2018), available at https://www.congress.gov/bill/115th-congress/house-bill/387.
©1996-2019 Morrison & Foerster LLP. All rights reserved.