Brief of Amici Curiae Law Professors in Support of Microsoft Corp. In Microsoft v. Department of Justice (ECPA Gag Order Litigation)

Abstract

Amici curiae law professors, whose work focuses on privacy, technology, security, and constitutional law, write to assist the Court by providing important context for the Government’s motion to dismiss Microsoft’s challenge to secrecy orders under 18 U.S.C. § 2705(b) that accompany digital searches and seizures. That provision of the Electronic Communications Privacy Act (“ECPA”), which authorizes “preclusion of notice,” violates historical and modern understandings of the First and Fourth Amendments because it allows the Government to indefinitely bar online service providers from speaking publicly or notifying users about the seizures they effect at the Government’s behest. Section 2705(b) is therefore unconstitutional.

Keywords: Electronic Privacy Communications Act, ECPA, gag orders, non-disclosure orders, secrecy, surveillance, surveillance transparency, First Amendment, Fourth Amendment