Orrick Files Amicus Brief, Joined By 30 Media Organizations, Backing Microsoft in Challenge to DOJ Gag Orders

09.02.16

Orrick today filed an amicus brief joined by 30 media organizations in support of Microsoft Corp. in its challenge to the government’s use of gag orders on tech companies when obtaining warrants to access customer emails.

Raising important issues related to public understanding of government surveillance practices, Orrick filed the brief in the Western District of Washington on behalf of a broad cross-section of media organizations, including the Reporters Committee for Freedom of the Press, The Seattle Times and The Washington Post.

Supporting Microsoft’s opposition to the government’s motion to dismiss the case, the media organizations argue that the use of such indefinite gag orders threatens core First Amendment principles and prevents news organizations from informing the American public about the scope of government surveillance.

Orrick’s brief discusses the critical role that a free press plays in ensuring an enlightened citizenry because, as Thomas Jefferson wrote, “[o]ur liberty depends on the freedom of the press, and that cannot be limited without being lost.” The brief identifies how newsgathering and reporting are impeded when the recipients of warrants are barred by gag orders from disclosing information about those warrants.

Led by Orrick partner Bob Loeb, the brief argues that indefinite gag orders on Microsoft and other tech companies amount to a prior restraint on speech; infringe the media’s First Amendment right to receive newsworthy information from a willing speaker; and interfere with the common law right of access to criminal proceedings.

Microsoft sued the Justice Department in April, challenging the constitutionality of the gag orders. Microsoft’s lawsuit said it received more than 6,000 demands from the government to search customer information data over a 20-month period; more than half of those demands were accompanied by gag orders. The amicus brief notes that this widespread use of the gag orders could also pose a “real threat” to the news media and its sources that may be under government surveillance without their knowledge.

The amicus brief can be read here.

In addition to Bob, the Orrick team includes partner Mark Parris and associate Aaron Scherzer.