Faisal Kutty, a law professor at Valparaiso University and Osgoode Hall Law School said that Microsoft is challenging the gag orders under the First and Fourth Amendments, but neither of its arguments is terribly strong.

“The applicable standard being that the court must find ‘there is reason to believe’ that notice will jeopardize an investigation,” Kutty said. “I believe the indefinite gag orders and low standard pose a First Amendment problem especially if customers never get notice that their data was searched by government agents. But if the government can show that it is not indefinite and that there is a valid basis for delay, then the court would not find a First Amendment problem. The standard of ‘there is reason to believe’ may also be applied too broadly given the national security card.”