Seattle, Washington—The Electronic Frontier Foundation (EFF) told a federal court today that the government is violating the U.S. Constitution when it fails to notify people that it has accessed or examined their private communications stored by Internet providers in the cloud.

EFF is supporting Microsoft in its lawsuit challenging portions of the Electronic Communications Privacy Act (ECPA) that allow the Department of Justice (DOJ) to serve a warrant on the company to get access to customers’ emails and other information stored on remote servers—all without telling users their data is being searched or seized. In a brief filed in Microsoft v. Department of Justice in U.S. District Court in Seattle, EFF, joined by Access Now, New America’s Open Technology Institute, and legal scholar Jennifer Granick, said Fourth Amendment protections against unreasonable searches and seizures by the government apply to all of our information—no matter what the format or where it’s located.

“Whether the government has a warrant to rifle through our mail, safety deposit boxes, or emails stored in the cloud, it must notify people about the searches,” said EFF Senior Staff Attorney Lee Tien. “When electronic searches are done in secret, we lose our right to challenge the legality of law enforcement invasions of privacy. The Fourth Amendment doesn’t allow that, and it’s time for the government to step up and respect the Constitution.”

Microsoft sued DOJ earlier this year challenging ECPA provisions enacted 30 years ago, long before the emergence of ubiquitous cloud computing that now plays a vital role in the storage of private communications. The government has used the transition to cloud computing as an opening to conduct secret electronic investigations by serving search warrants on Internet service providers seeking users’ emails, the lawsuit says. The government, which wants the case thrown out, doesn’t let account holders know their data is being accessed because of the unconstitutional ECPA provision, while service providers like Microsoft are gagged from telling customers about the searches.

“When people kept personal letters in a desk drawer at home, they knew if that information was about to be searched because the police had to knock on their door and show a warrant,” said EFF Staff Attorney Sophia Cope. “The fact that today our private emails are kept on a server maintained by an Internet company doesn’t change the government’s obligations under the Fourth Amendment. The Constitution requires law enforcement to tell people they are the target of a search, which enables them to vindicate their rights and provides a free society with a crucial means of government accountability.”

EFF thanks Seattle attorney Venkat Balasubramani of FocalLaw P.C. for his assistance as local counsel.

For the brief:

https://www.eff.org/document/microsoft-v-justice-department-amicus-brief

About this case:

https://www.eff.org/cases/microsoft-v-department-justice