Microsoft faces an uphill battle in its fight to strike down the government’s ability to prevent the service provider from telling its customers about law enforcement demands to access user data, but the company’s argument that the government can’t force it to keep customers in the dark forever may find some traction, attorneys say.

Microsoft Corp. filed a lawsuit urging a federal district court in Washington to find unconstitutional the government’s purportedly broad use of Section 2705(b) of the Electronic Communications Privacy Act. That provision allows courts to bar service providers like Microsoft from telling customers about the existence of warrants for their email content or other private data if government officials have a "reason to believe" that the disclosure might hinder an investigation.

Microsoft has received 2,800 gag orders in the past 18 months, and has elected to address the legislative foundation allowing the practice of silencing companies to become prevalent rather than challenge any of those gag orders.

In doing so, they ask the court in their complaint to evaluate the statute against the First Amendment, and the Fourth Amendment—which it argues give people and business the right to know if the government searches or seizes their property. 

Legal experts expect that Microsoft will have the most difficult time sustaining its Fourth Amendment claims because it is trying to assert the violation on behalf of its customers, and may not have standing to do so. Also, it’s the Rule 41 of the Federal Rules of Civil Procedure, not the Fourth Amendment that explicitly requires notice to be given of a search.

“Rule 41 requires notice to be given to the individual from whose premise property was taken, and in essence here, Microsoft was the person from whose premise the property was taken,” Ballard Spahr LLP partner and former federal prosecutor Edward McAndrew said.

Microsoft may have more success with its First Amendment argument.

According to McAndrew, most search warrants for documents in electronic storage are executed at the very outset of an investigation, before any charges have been filed or conclusions have been drawn. If the government wasn’t able to obtain secrecy orders, the target of the search would be tipped off and given the chance to destroy documents or otherwise impede the nascent probe, McAndrew said.

“What’s important to understand is that these types of warrants are often used by investigators to help build evidence and support a charging disposition or physical searches of houses, cars or devices,” he added. “So the secrecy of this activity at least for a period of time is crucial to the success of an investigation.”