WASHINGTON—As the result of a high-profile First Amendment challenge to the federal statute invoked by law enforcement to impose gag orders on technology companies, Microsoft, and its counsel Covington and Davis Wright Tremaine, have secured landmark reform of the U.S. Department of Justice's approach to digital surveillance.
Covington and Davis Wright Tremaine sued the Department of Justice on Microsoft's behalf in April 2016. At the time, and until DOJ's recent reforms, the government routinely sought and obtained gag orders that prohibited email providers from telling their customers that the government had seized personal emails or records. In many cases, these gag orders had no fixed end date, so email providers were effectively barred forever from telling customers that their data had been taken by the government. Microsoft contended that DOJ's practices violated the Fourth Amendment rights of Microsoft's customers and Microsoft's First Amendment rights to notify its customers.
As a result of Microsoft's suit, Deputy Attorney General Rod Rosenstein issued a binding policy memo on October 19, 2017 to all federal prosecutors and law enforcement agencies, making clear that gag orders must “have an appropriate factual basis and . . . extend only as long as necessary to satisfy the government’s interest” in secrecy. Except in exceptional circumstances, gag orders directed at tech companies may last no longer than one year.
"This is an important step for both privacy and free expression," said Brad Smith, Microsoft's President and Chief Legal Officer. "It is an unequivocal win for our customers, and we’re pleased the DOJ has taken these steps to protect the constitutional rights of all Americans." In light of DOJ's substantial reforms, Microsoft decided to dismiss its case.
The Microsoft team was led by Covington partners James Garland and Alex Berengaut and Davis Wright Tremaine partners Steve Rummage and Ambika Doran.
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