Do Business, Regulatory Realities Trump Constitutional Principle in Gag Orders Fight?

Silencing some of the biggest technology companies is no small feat. But for many federal authorities, it is becoming an increasingly common endeavor. Empowered by Section 2705 of the Stored Communications Act, the federal government is prohibiting tech companies from notifying customers of the legal collection of their data, sometimes indefinitely.

 But large technology companies like Microsoft and Adobe are fighting back, arguing that such “gag orders,” infringe on their and their customers constitutional rights. While some of these challenges have found limited success, a final word on the legality of Section 2705 gag orders may be a long time coming. But these gag orders represent not only a potential infringement on the rights of large tech companies, but a business and regulatory threat that is fought with little downside.  

To hear tech companies explain it, challenging these gag orders is in large part a matter of constitutional principle. In a blog post in April 2016, Brad Smith, ‎president and chief legal officer at Microsoft, called his company's legal fight “an issue of fundamental rights.” He explained that Section 2705 gag orders “violate two of the fundamental rights that have been part of this country since its founding,” referring to the 1^st and 4^th Amendments.