DOJ's Gag Order Request On Reason Was As Ridiculous As You'd Expect

from the rubber-stamps-are-back-in-fashion dept

A few weeks back we discussed a few times the ridiculousness of Assistant US Attorny Niketh Velamoor seeking, and then getting, a gag order preventing Reason.com’s staff from revealing the existence of a subpoena for identifying information on a few of its commenters who had made hyperbolic internet comments about a US judge. We noted that the gag order itself did not give a reason, other than repeating the possibility of any or all of the officially allowed reasons for a gag order, but never specifying which ones applied. We also noted that Velamoor’s initial application for the gag order had not been unsealed in the case — and we filed a FOIA request with the Justice Department for it (along with the DOJ’s guidelines on seeking a gag order). We still have not received a response on either FOIA request.

However, Public Citizen’s Paul Levy went with the more direct route of reaching out to Velamoor directly and requesting the application for the gag order — and after some initial pushback and evasions Velamoor eventually asked the court to unseal the document (as Levy notes, Velamoor perhaps used the time in between to learn what the law says and to research Public Citizen’s long history of suing to get documents unsealed). And thus, Levy has now published the application and written up an analysis. You can see the application here, where it shows that, as in the rubber stamp approval of the gag order, Velamoor simply listed out the categories of reasons why a gag order can be issued and then basically said that the commenters might “flee” or “tamper” with certain data.

When the Government seeks such information via grand jury subpoena, 18 U.S.C. § 2705(b) authorizes the Court to issue

an order commanding a provider of electronic communications service or remote

computing service to whom a warrant, subpoena, or court order is directed, for

such period as the court deems appropriate, not to notify any other person of the

existence of the warrant, subpoena, or court order. The court shall enter such an

order if it determines that there is reason to believe that notification of the

existence of the warrant, subpoena, or court order will

result in–

(1) endangering the life or physical safety of an individual;
(2) flight from prosecution;

(3) destruction of or tampering with evidence;

(4) intimidation of potential witnesses; or

(5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.

In this case, such an order would be appropriate because the attached subpoena relates to an ongoing criminal investigation that is neither public nor otherwise known to all targets of the investigation, the account holder is suspected of being involved in or associated with persons involved in the conduct under investigation, and disclosure of the subpoena to the account owner or to any other person may alert subjects or targets of the ongoing investigation. Accordingly, there is reason to believe that notification of the existence of the attached subpoena will seriously jeopardize the investigation, including by giving targets an opportunity to flee or avoid prosecution, or tamper with evidence, including electronically stored information that is easily tampered with. Given the amount of time a criminal investigation commonly lasts and the particular circumstances presented here, the Government respectfully submits that 180 days is an appropriate delay of notice period for the Court to order.

Neither of these arguments make much sense, nor should they result in a gag order. Again, the comments in question were all pretty clearly hyperbolic internet statements and not real threats in any way. The idea that someone would “flee” over that is pretty much laughable. Second, the data was on Reason’s servers, which the commenters would not have access to in order to “tamper” with such evidence. One could argue that it’s possible they could tamper with local files, browsing history and the like, but it’s difficult to see what good that would do and would just open the individuals up to further charges. Plenty of legal cases involve issuing subpoenas or notices not to tamper with evidence. There is no reason that couldn’t have been done in this case without a First Amendment-stifling gag order.

As Levy notes, if this is the appropriate level of disclosure required to get a gag order in New York, then basically any subpoena would qualify for a gag order, which is tremendously problematic. And, indeed, historically such a broad stifling of speech is considered unconstitutional.

At this level of generality, such a claim could be made about just about any subpoena, but the courts have generally been skeptical of claims by federal prosecutors that they can flatly forbid witnesses before the grand jury from disclosing what they have been asked.  The leading case, from the First Circuit, summarized the case law as being divided between courts that read Federal Rule of Criminal Procedure 6(e)(2) as flatly forbidding the imposition of secrecy requirements on grand jury witnesses, and those that allow restrictions only on a demonstration of ?compelling necessity … shown with particularity.?  It is hard to see Velamoor?s affidavit as meeting that standard.  The basis for the gag order is a statute specific to subpoenas to ISP’s, but Ken White has collected a number of cases  in which trial judges have demanded specific showings before issuing gag orders to ISP?s in particular.    Knowing as we do that this trial judge asked no questions to pierce the generalities in the application, as a practical matter it seems to me that the judge had no evidentiary basis for enjoining journalists from writing about a government demand to disclose the identity of anonymous speakers who, themselves, were not accused of wrongdoing.

Levy also does discuss the possibility that there is a legitimate investigation going on behind all of this, which is certainly possible, if extremely unlikely. But, at the very least, it seems nearly everyone agrees that the gag order itself was quite ridiculous and unconstitutional. And both AUSA Niketh Velamoor and the judge who signed off on it, Frank Maas, should be called to account for why they requested and approved it, respectively. It’s not hard to speculate on the reasons: it seems likely that Velamoor requested it after realizing that Reason was going to tell people about it and that the story would likely become public (and, then, perhaps realizing how it looks to subpoena the identity of hyperbolic internet commenters who weren’t making any realistic threats). Similarly, it seems likely that judge Maas didn’t look too deeply into the situation and more or less rubberstamped the gag order because it came from an AUSA who insisted it was important for his investigation. Perhaps there’s more to it, but it would seem that both Velamoor and Maas should explain what that “more” would be, if they don’t want the more obvious speculations to be accepted as fact.

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Comments on “DOJ's Gag Order Request On Reason Was As Ridiculous As You'd Expect”

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15 Comments
Anonymous Coward says:

Re: Re: Unsupported allegations [was ]

GP is not solely alleging bribery. He is alleging that there are two possible reasons for Judge Frank Maas to have issued such an astoundingly stupid order:

Possibility #1: Bribery (though not necessarily monetary bribery).
Possibility #2: General failure to uphold good ethical standards.

Your comment seems to support the latter, and that is indeed more likely. However, bribery would oddly be the less distressing conclusion. If he was only doing it because he was paid off, one might hope that, absent a payoff, he Does The Right Thing and upholds the law. If your assessment is correct and he routinely fails to uphold good ethical standards, then you cannot trust that any action originating in his court is consistent with the law.

Anonymous Coward says:

Re: Re: Re: Unsupported allegations [was ]

… you cannot trust that any action originating in his court is consistent with the law.

In American law, commonly all court proceedings are afforded a presumption of regularity.

When the specific actions of any one particular court are replicated daily across the nation, then it is manifest that those actions are indeed consistent with the law: The law as it is.

One must have a realist philosophy here.

Anonymous Coward says:

Re: Re: Re:2 Unsupported allegations [was ]

I think we’re talking past each other. You seem to be saying that, if abuse is consistent enough, then it is no longer abuse because it has been standardized. I am saying that just because every man beats his wife does not mean that wife beating is right. Widespread abuse proves only that the checks on that abuse are ineffective, not that the abuse is a legitimate action.

Anonymous Coward says:

Re: Re: Re:3 Unsupported allegations [was ]

I think we’re talking past each other.

Legal Theory Lexicon 016: Positive and Normative Legal Theory (Larry Solum)

Introduction

One of the most fundamental distinctions in legal theory is that between “positive legal theory” and “normative legal theory.” This post provides a very brief introduction to the distinction . . .

Anonymous Coward says:

Re: Re: Re:3 Unsupported allegations [was ]

… legitimate…

Legal Theory Lexicon 046: Legitimacy (Larry Solum)

Normative and Sociological Legitimacy

Let’s begin with the distinction between normative legitimacy and sociological legitimacy. On the one hand, we talk about legitimacy as a normative concept. When we use “legitimacy” in the normative sense, we are making assertions about some aspect of the rightness or wrongness of some action or institution. On the other hand, legitimacy is also a sociological concept. When we use legitimacy in the sociological sense, we are making assertions about legitimacy beliefs–about what attitudes people have. Although these two senses of legitimacy are related to one another, they are not the same. . . .

Eponymous Coward says:

Secrecy is important

Listen, just because a judge does something you don’t like doesn’t mean it’s unconstitutional. Secrecy is an important doctrine in US law. What would if someone could use outing someone in a dangerous occupation as a means of political getback and then get away with it? I mean can you imagine how many people would be up in arms over that? I suspect there’d nigh be a revolution.

There are numerous reasons to issue a gag order in this case. What if they were conservatives? I mean we all know conservatives are all bloodthirsty beasts. And if they were liberals…well let’s just not go into that bastion of heathens.

In short, if you can’t prove he’s taking money, he must be acting ethically.

Groaker (profile) says:

I never claimed the judge was taking anything in return. Nor did I make any statement with regard to this particular case. Only that gag orders in general are becoming rather excessive. They are being used to hide behavior on the part of the dependent and/or the prosecutor.

The Judicial branch above all others must be transparent. Yet there are apparently secret courts, secret laws, secret trials, secret punishments in secret prisons. Claims of missing docket numbers. These are not acceptable in a free society.

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