Why LinkedIn is challenging an overbroad government demand—and why Congress must make secrecy the exception
Today, the U.S. Court of Appeals for the Fourth Circuit heard oral argument in LinkedIn’s (a Microsoft subsidiary) appeal challenging a government demand for user records and a related secrecy order that is preventing LinkedIn from notifying those users that the government is seeking their data. The appeal asks important, constitutional questions about whether service providers may challenge demands that sweep in records unrelated to an investigation, and when the government may prevent a provider from notifying the user of a request.
This appeal continues Microsoft’s longstanding work to ensure that secrecy orders remain the exception, not the rule. LinkedIn’s appeal asks courts to enforce meaningful limits on both the scope of government demands and the secrecy that can accompany them.
We recognize law enforcement’s important role in protecting public safety and investigating crime, and sometimes that does need to be done covertly. We respond to lawful legal requests. At the same time, customers and users deserve meaningful limits and independent oversight through an adversarial process. And, customers deserve to be notified when the government seeks their data, unless the government clearly establishes the need for secrecy under statutory and constitutional standards.
Those safeguards fulfill basic constitutional rights. The Fourth Amendment protects the right to be free from unreasonable searches and seizures. That right applies to papers kept in a desk, and it also applies when personal and business records are stored online. Online service providers, like LinkedIn and Microsoft, also have a First Amendment right to speak to their customers when the government obtains an order to search their private information. Secrecy may sometimes be justified—but it should be tailored to demonstrated needs and subject to meaningful review.
This particular case arose after LinkedIn received a court order seeking user records together with a secrecy order preventing LinkedIn from informing anyone about the order. The details remain under seal, including the nature of the information the government seeks and the people who own that information. But the Fourth Circuit partially unsealed LinkedIn’s opening brief in July, allowing the public to understand some of the core issues. LinkedIn argues that the demand is overbroad, the secrecy order is unconstitutional, and the government has violated LinkedIn’s due process by withholding evidence from LinkedIn.
Three amicus briefs from a broad coalition support LinkedIn’s position. The American Civil Liberties Union and ACLU of Virginia argue that users’ privacy interests must inform whether a demand is reasonable and that providers may be the only practical means of challenging unlawful process because users often receive no notice. The Reporters Committee for Freedom of the Press warns that overbroad demands, delayed notice, and secret evidence can expose confidential sources and chill newsgathering. Amazon, Apple, Google, Meta, and X emphasize that cloud providers are uniquely positioned to identify irrelevant requests and that secrecy orders require case-specific evidence rather than boilerplate assertions. Together, these briefs show why cloud providers must be able to test both the scope of government demands and the need for secrecy.
Microsoft has a long record of standing up for these principles. In 2014, Microsoft successfully challenged a secrecy order connected to a National Security Letter that prevented notice to an enterprise customer. In 2016, we filed a landmark challenge to the widespread use of indefinite secrecy orders. We’ve successfully challenged individual secrecy orders time and again over the years. Our efforts contributed to updated Justice Department policies, but executive-branch practices can change. Durable protections require the development of case law and legislation.
The U.S. House of Representatives recently took an important step in that direction. On August 31, the House passed legislation to rein in secret surveillance and strengthen notice protections when the government seeks data held by technology providers. As we explained when the bill passed, the reforms would place clearer limits on secrecy orders, require greater accountability, and help ensure that secrecy is the exception – not the rule. The Senate should act promptly to send these historic reforms to the President.
The House –passed legislation recognizes that privacy and public safety are not opposing values. Clear standards can give investigators the confidentiality they genuinely need while providing courts, providers, and customers with predictable rules. The pending legislation and LinkedIn’s appeal are the latest, complementary chapters in this broader effort. Legislation can establish durable, system-wide rules for notice and accountability. Courts must meanwhile enforce the limits already contained in existing statutes and the Constitution. Neither task requires obstructing legitimate investigations. Rather, both mean the government must seek only relevant information, justify secrecy with specific evidence, and infringe on speech to the least extent possible.
That is why today’s argument matters beyond a single sealed investigation. People and organizations increasingly entrust their most sensitive information to online services. If providers cannot challenge demands they know are overbroad—or if courts may silence them without a rigorous, adversarial review—the safeguards the law requires will be weakened precisely when they are most needed.
Microsoft and LinkedIn will continue to support lawful investigations while standing up for customer privacy, transparency, and the rule of law. We have appealed to the Fourth Circuit to preserve providers’ ability to challenge overbroad demands and to require the government to meet its constitutional burden before imposing secrecy. And we urge the Senate to complete the work the House began by enacting durable non-disclosure order reform.
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