[Infowarrior] - Court backs Microsoft suit over surveillance gag orders

[Richard Forno]

Court backs Microsoft suit over surveillance gag orders

By Josh Gerstein

02/09/17 02:08 PM EST

http://www.politico.com/blogs/under-the-radar/2017/02/microsoft-lawsuit-gag-orders-court-ruling-234855

A federal judge currently in the spotlight for blocking President Donald Trump's executive order banning immigration from seven Muslim-majority countries is now questioning the constitutionality of secrecy orders that accompany government surveillance demands.

U.S. District Court Judge James Robart issued a 47-page opinion Thursday allowing Microsoft to proceed with a lawsuit claiming a First Amendment violation when the government restricts internet providers from notifying subscribers about requests for their data.

"The orders at issue here are more analogous to permanent injunctions preventing speech from taking place before it occurs," Robart wrote. "The court concludes that Microsoft has alleged sufficient facts that when taken as true state a claim that certain provisions of Section 2705(b) fail strict scrutiny review and violate the First Amendment."

The Seattle-based judge's ruling on Microsoft's lawsuit was not a final one. Robart, an appointee of President George W. Bush, simply rejected the government's motion to dismiss and allowed Microsoft to press forward with its First Amendment claims.

"We’re pleased this ruling enables our case to move forward toward a reasonable solution that works for law enforcement and ensures secrecy is used only when necessary," Microsoft President and Chief Legal Officer Brad Smith said in a statement.

Robart did dismiss a claim from the tech giant that the non-disclosure provisions violate the Fourth Amendment's ban on unreasonable searches and seizures.

A Justice Department spokeswoman said officials are reviewing the opinion. She declined further comment, citing the pending litigation.

Josh Gerstein is a senior reporter for POLITICO.