The word “Microsoft” appears nowhere in a groundbreaking policy memo issued by Deputy Attorney General Rod Rosenstein curbing the government's use of gag orders on tech companies, but you can draw a direct line to the company and its legal team from Covington & Burling and Davis Wright Tremaine.

It's a significant victory for Microsoft, which sued the government last year in Seattle federal court seeking a declaratory judgment. At issue: When (if ever) should people have a right to know that the government got a warrant to secretly read their emails?

Because apparently, it happens quite a bit. According to Microsoft, in an 18-month period, it received 2,576 legal demands from the feds that included an obligation of secrecy—and 68 percent of those appeared to be indefinite.

In his Oct. 19 memo, Rosenstein reined prosecutors in sharply, issuing a mandatory and binding memo that will be incorporated into the U.S. attorneys' manual.

Government lawyers may only seek a gag order on email providers like Microsoft “when circumstances require,” he wrote, and “must conduct an individualized and meaningful assessment regarding the need for protection from disclosure.”

In the early stages of an investigation, prosecutors might justify surreptitious snooping by invoking “the risk that subject(s) will flee, destroy or tamper with evidence, change patterns of behavior, or notify confederates.”  But as the investigation develops, Rosenstein wrote, “The prosecutor should include more specific facts, as available, in support of the protective order.”

Moreover, the orders can't stay secret forever. “Barring exceptional circumstances, prosecutors…may only seek to delay notice for one year or less,” he wrote. (In a footnote, Rosenstein flags “certain national security investigations that materially differ from routine criminal investigations.” Which makes sense. It's unhelpful to tell would-be terrorists that you're reading their emails.)

On Tuesday, Microsoft filed an unopposed motion to dismiss its lawsuit against DOJ.

Microsoft President and Chief Legal Officer Brad Smith called the new policy an “important step in ensuring that people's privacy rights are protected when they store their personal information in the cloud,” he wrote in the company blog on Monday. And he said it “came after months of Microsoft working for change, both in its lawsuit and in public fora.” He added that the company will continue to push for further reform in Congress.

There's a bit of irony in play, because the Justice Department to date under AG Jeff Sessions has not seemed terribly concerned about potential First or Fourth Amendment violations, as invoked by Microsoft in its lawsuit. But perhaps the feds recognized they held a weak hand.

Microsoft in its complaint argued that the Electronic Communications Privacy Act “violates both the Fourth Amendment, which affords people and businesses the right to know if the government searches or seizes their property, and the First Amendment, which enshrines Microsoft's rights to talk to its customers and to discuss how the government conducts its investigations.”

“Before the digital age, individuals and businesses stored their most sensitive correspondence and other documents in file cabinets and desk drawers,” wrote Davis Wright Tremaine partners Stephen Rummage and Ambika Doran. “Today, individuals increasingly keep their emails and documents on remote servers owned by third parties … But the transition to the cloud does not alter the fundamental constitutional requirement that the government must—with few exceptions—give notice when it searches and seizes the private information or communications of individuals or businesses.”

As legal document, the complaint is a compelling read—intentionally so, said Rummage in an interview. The Microsoft team knew it would be “read a lot more broadly” than a typical suit. “We were writing for the public, in essence.”

The list of pro-Microsoft amici spanned the spectrum. Everyone from the ACLU to the U.S. Chamber of Commerce; from former federal law enforcement officials (including four previous U.S. attorneys in Seattle) to a who's-who of media organizations, even random individual companies like BP America and Eli Lilly, all backed Microsoft.

“It's not always the case that the tech sector speaks with one voice, or the civil liberties community or the business establishment,” Covington partner James Garland said.  “But everyone agreed this was an abusive and unconstitutional practice.”

On the government's side? No one.

In February, U.S. District Judge James Robart of the Western District of Washington refused to dismiss the case, and set a trial date of June 4, 2018.

Discovery was tricky. “This case was about secrecy, and facts related to our claim were secret,” said Covington partner Alex Berengaut.

Doran of Davis Wright added that the gag orders were filed in courts across the country, and often, the cases themselves were sealed. “We couldn't ask [Robart] to unseal everything in every other court,” she said.

As for DOJ, it found itself in the unaccustomed position of defendant. Garland praised the government's lawyers, but added, “I think DOJ honestly came to grips with the fact that we were right pretty quickly. They did the right thing.

The word “Microsoft” appears nowhere in a groundbreaking policy memo issued by Deputy Attorney General Rod Rosenstein curbing the government's use of gag orders on tech companies, but you can draw a direct line to the company and its legal team from Covington & Burling and Davis Wright Tremaine.

It's a significant victory for Microsoft, which sued the government last year in Seattle federal court seeking a declaratory judgment. At issue: When (if ever) should people have a right to know that the government got a warrant to secretly read their emails?

Because apparently, it happens quite a bit. According to Microsoft, in an 18-month period, it received 2,576 legal demands from the feds that included an obligation of secrecy—and 68 percent of those appeared to be indefinite.

In his Oct. 19 memo, Rosenstein reined prosecutors in sharply, issuing a mandatory and binding memo that will be incorporated into the U.S. attorneys' manual.

Government lawyers may only seek a gag order on email providers like Microsoft “when circumstances require,” he wrote, and “must conduct an individualized and meaningful assessment regarding the need for protection from disclosure.”

In the early stages of an investigation, prosecutors might justify surreptitious snooping by invoking “the risk that subject(s) will flee, destroy or tamper with evidence, change patterns of behavior, or notify confederates.”  But as the investigation develops, Rosenstein wrote, “The prosecutor should include more specific facts, as available, in support of the protective order.”

Moreover, the orders can't stay secret forever. “Barring exceptional circumstances, prosecutors…may only seek to delay notice for one year or less,” he wrote. (In a footnote, Rosenstein flags “certain national security investigations that materially differ from routine criminal investigations.” Which makes sense. It's unhelpful to tell would-be terrorists that you're reading their emails.)

On Tuesday, Microsoft filed an unopposed motion to dismiss its lawsuit against DOJ.

Microsoft President and Chief Legal Officer Brad Smith called the new policy an “important step in ensuring that people's privacy rights are protected when they store their personal information in the cloud,” he wrote in the company blog on Monday. And he said it “came after months of Microsoft working for change, both in its lawsuit and in public fora.” He added that the company will continue to push for further reform in Congress.

There's a bit of irony in play, because the Justice Department to date under AG Jeff Sessions has not seemed terribly concerned about potential First or Fourth Amendment violations, as invoked by Microsoft in its lawsuit. But perhaps the feds recognized they held a weak hand.

Microsoft in its complaint argued that the Electronic Communications Privacy Act “violates both the Fourth Amendment, which affords people and businesses the right to know if the government searches or seizes their property, and the First Amendment, which enshrines Microsoft's rights to talk to its customers and to discuss how the government conducts its investigations.”

“Before the digital age, individuals and businesses stored their most sensitive correspondence and other documents in file cabinets and desk drawers,” wrote Davis Wright Tremaine partners Stephen Rummage and Ambika Doran. “Today, individuals increasingly keep their emails and documents on remote servers owned by third parties … But the transition to the cloud does not alter the fundamental constitutional requirement that the government must—with few exceptions—give notice when it searches and seizes the private information or communications of individuals or businesses.”

As legal document, the complaint is a compelling read—intentionally so, said Rummage in an interview. The Microsoft team knew it would be “read a lot more broadly” than a typical suit. “We were writing for the public, in essence.”

The list of pro-Microsoft amici spanned the spectrum. Everyone from the ACLU to the U.S. Chamber of Commerce; from former federal law enforcement officials (including four previous U.S. attorneys in Seattle) to a who's-who of media organizations, even random individual companies like BP America and Eli Lilly, all backed Microsoft.

“It's not always the case that the tech sector speaks with one voice, or the civil liberties community or the business establishment,” Covington partner James Garland said.  “But everyone agreed this was an abusive and unconstitutional practice.”

On the government's side? No one.

In February, U.S. District Judge James Robart of the Western District of Washington refused to dismiss the case, and set a trial date of June 4, 2018.

Discovery was tricky. “This case was about secrecy, and facts related to our claim were secret,” said Covington partner Alex Berengaut.

Doran of Davis Wright added that the gag orders were filed in courts across the country, and often, the cases themselves were sealed. “We couldn't ask [Robart] to unseal everything in every other court,” she said.

As for DOJ, it found itself in the unaccustomed position of defendant. Garland praised the government's lawyers, but added, “I think DOJ honestly came to grips with the fact that we were right pretty quickly. They did the right thing.