233 F. Supp. 3d 887
W.D. Wash.2017Background
- Microsoft (provider of electronic communications and remote computing services) sued the Department of Justice seeking declaratory relief challenging 18 U.S.C. §§ 2703 and 2705(b) of the Stored Communications Act (SCA).
- Microsoft alleges the government increasingly obtains user content from providers and secures nondisclosure (gag) orders under § 2705(b) that often are indefinite, preventing Microsoft from notifying customers or speaking about government demands.
- Microsoft contends § 2705(b) (and portions of § 2703) violate the First Amendment (prior restraint, content-based restriction, overbreadth, and public-access concerns) and the Fourth Amendment (right to notice of searches/seizures); it seeks a declaration invalidating the statutes as applied and facially.
- The Government moved to dismiss for lack of standing and failure to state a claim; litigants and amici briefed the issues and the court heard argument.
- The district court held Microsoft has standing and adequately pleaded First Amendment claims (facial and as-applied) challenging indefinite nondisclosure orders, but dismissed Microsoft’s Fourth Amendment claims because a provider may not assert customers’ Fourth Amendment rights.
Issues
| Issue | Microsoft’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Standing for First Amendment claim | Microsoft has suffered concrete, particularized injury from thousands of indefinite § 2705(b) gag orders and faces likely future harm; declaratory relief would prevent future orders | Microsoft lacks concrete injury, relief would not redress because individual orders remain in force | Court: Microsoft has Article III standing (injury, causation, redressability) and likelihood of future injury supports declaratory relief |
| First Amendment merits (prior restraint/content-based) | Indefinite nondisclosure orders are prior restraints and content-based restrictions not narrowly tailored; statute allows indefinite, unreviewed gagging beyond investigatory need | § 2705(b) provides procedural safeguards and is justified by compelling government interests (investigations, safety, evidence preservation) | Court: Microsoft plausibly pleaded that § 2705(b) permits indefinite, insufficiently tailored restraints and overbreadth; claim survives 12(b)(6) |
| Overbreadth doctrine | § 2705(b) is substantially overbroad because many applications are indefinite, use a weak “reason to believe” standard, and include a catch‑all that permits broad secrecy | Overbreadth inappropriate because Microsoft is a regulated party and allegations about number/terms of orders are insufficient | Court: Overbreadth challenge may proceed; Microsoft’s allegations suffice to plausibly plead substantial overbreadth |
| Fourth Amendment third‑party standing | Microsoft can assert customers’ Fourth Amendment right to notice because customers are effectively unable to vindicate their rights due to secrecy | Fourth Amendment rights are personal; third parties (providers) may not vicariously assert customers’ rights | Court: Dismisses Fourth Amendment claims; longstanding Supreme Court/Ninth Circuit precedent bars Microsoft from asserting its customers’ Fourth Amendment rights and amendment would be futile |
Key Cases Cited
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (standing principles for Article III injury requirement)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (concrete and particularized injury requirement for standing)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (injury‑in‑fact and imminence for standing)
- Freedman v. Maryland, 380 U.S. 51 (procedural safeguards required for prior restraints)
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (content‑based regulation subject to strict scrutiny)
- Alderman v. United States, 394 U.S. 165 (Fourth Amendment rights are personal; generally no vicarious assertion)
- Rakas v. Illinois, 439 U.S. 128 (limits on third‑party Fourth Amendment standing)
- Times Mirror Co. v. United States, 873 F.2d 1210 (public access to warrant materials and balance with investigatory secrecy)
- Warshak v. United States, 631 F.3d 266 (privacy expectation in email content)