Government Drops Facebook Search Warrant Gag Order At Eleventh Hour
from the preventative-action dept
Facebook has won its challenge against a warrant gag order. Unfortunately, it’s more of a case of the government forfeiting than the social media giant raising a successful challenge.
Details from the case are limited, but the warrant appears to target protesters arrested during Trump’s inauguration. Nearly eight months after having the gag orders challenged, the government has decided to let Facebook inform users affected by the government’s demand for 90 days of Facebook activity from three accounts. But there’s no victory here for Facebook, because it appears the government is merely seeking to avoid losing the case and having gag order-unfriendly precedent established in a district where it does a whole lot of secretive work.
According to court papers filed jointly by Facebook and the US attorney’s office in Washington on Wednesday, prosecutors determined that the underlying investigation that prompted the search warrants — the details of which are under seal — had “progressed … to the point where the [nondisclosure orders] are no longer needed.”
The announcement came less than 24 hours before an appeals court in Washington, DC, was set to hear arguments in the case. According to the joint filing, a lower court judge vacated the nondisclosure orders at the government’s request, making Facebook’s appeal of those orders moot. The lawyers asked the District of Columbia Court of Appeals to dismiss the case, and the court granted that request on Wednesday afternoon.
This leaves the government’s case intact and mostly buried. The now-lifted gag order wasn’t indefinite: it allowed Facebook to notify users 30 days after info was handed over to the government. But so far, no info has been handed over, which means the clock hasn’t budged on eventual disclosure. Now Facebook can inform the users affected, but the government’s removal of the gag order suggests disclosure never posed any real risk to the government’s investigation.
The government probably sensed things wouldn’t go completely its way after the DC Appeals Court asked other interested parties to submit briefs on the issue. Multiple tech companies have challenged government search warrants and gag orders in last few years, resulting in a handful of small wins on the civil liberties front. Faced with this shift in judicial behavior, the government ditched this case just before public arguments were set to begin.
The lack of a positive precedential rulings hurts, but there’s no shortage of gag order challenges to be had. As Facebook’s own data shows, more than half the requests it receives from US law enforcement come with gag orders attached. The FBI’s liberal use of National Security Letters adds to that percentage, but statutorily-limited reporting makes it impossible to tell how often the feds demand info and vows of silence simultaneously.