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

September.02.2016

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.

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Robert Loeb Partner, Supreme Court & Appellate, Bankruptcy Litigation

Washington, D.C.

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Robert Loeb Partner

Washington, D.C.

The breadth and depth of Bob's appellate experience, and his consistent track record of success in high-stakes matters, are why clients, including top tech and energy companies, trust him with their most important cases.

The National Law Journal’s Litigator of the Week column recently recognized Bob’s appellate major wins in energy and product liability cases for Broadreach Power and Johnson & Johnson. Bob’s recent victories also include Fifth Circuit wins for energy clients Cheniere and Eni. In the Cheniere-Midship case, Bob obtained an emergency stay from the court of appeals of the regulating agency proceedings and, then after oral argument, achieved a full victory. And for Eni, Bob convinced the Fifth Circuit to vacate a $300M judgment against Eni in a dispute with another energy company. These types of big wins in the most challenging cases show why both Chambers and Legal 500 rank Bob among the Country’s top appellate advocates.

Bob has argued before the Supreme Court multiple times (including a 9-0 victory regarding application of the Fourth Amendment to rental cars), and has filed hundreds of briefs in the Supreme Court. He has also handled cases in highest state courts in California, New York, Maine, Kentucky and New Jersey.

Before joining Orrick, Bob served as one of the leaders of an elite appellate group at the Department of Justice. There, in addition to major national security, commercial, and administrative law, Bob supervised bankruptcy appeals. At Orrick, Bob has continued to handle big ticket bankruptcy matters, such as a billion-dollar dispute over whether DHL’s claim was discharged by United’s bankruptcy, appeals from the City of Stockton bankruptcy confirmation, and a Ninth Circuit matter involving the interplay of the Takings Clause and bankruptcy law.

Bob’s recent work includes matters for Johnson & Johnson, Avon, Microsoft, Eni, Cheniere Energy, Freeport LNG, Broadreach Power, LS Power, Exxon, Medidata, Renco, MSC Cruise Line, Golden 1 Credit Union, Credit Suisse, TravelCenters of America, Gannett, and the City of Stockton.