Magistrate Judge Shoots Down Government's Attempt To Gag Yahoo Indefinitely Over Grand Jury Subpoenas

from the checked-and-balanced dept

California judge Paul Grewal continues to hold up his end of the "Magistrates' Revolt." Grewal was the magistrate who shot down the government's open-ended request to grab every email in a person's Gmail account and sort through them at its leisure. He was actually the second magistrate to shoot down this request. The government went "judge shopping" after Judge John Facciola told it the scope of the request needed to be narrowed considerably before he would even think about granting it. The government decided it still wanted all the email and traveled across the country to see Judge Grewal… who told them to GTFO without even giving the feds the option to rewrite the request.

Grewal is once again siding with the public and acting as a check against government overreach.
Law enforcement cannot indefinitely forbid Yahoo Inc from revealing a grand jury subpoena that seeks subscriber account information, a U.S. judge ruled, because doing so would violate the company’s free speech rights.

U.S. Magistrate Judge Paul Grewal in San Jose, California on Thursday wrote that the government’s request would prohibit Yahoo from disclosing the subpoena, even years after the grand jury concluded its probe. The court order does not disclose the target of the federal investigation.

“In an era of increasing public demand for transparency about the extent of government demands for data from providers like Yahoo!, this cannot stand,” Grewal wrote.
Yahoo has had its fill of government secrecy. It spent a long time fighting both broad subscriber data requests from the NSA and their accompanying 25-year gag orders. Its ardent defense of its subscribers against broad government requests would still be under seal, but thanks to recently declassified documents, it has been able to address the subject publicly -- nearly 18 years before the gag order would have "aged off."

The DOJ again wants to maintain its subpoena secrecy, hoping to keep internet platforms like Yahoo, Twitter and Facebook from discussing grand jury subpoenas until… well, it's not entirely clear there's really an ending date.
Instead of asking that Yahoo be gagged for 60 or 90 days, the government asked that the company be gagged until further order of the court.
Grewal's rejection points out that the government feels entitled to indefinite gag orders, but has yet to offer any reasons why it should have its wishes granted.
The government did not demonstrate why such an indefinite request was necessary, Grewal wrote.
Judge Grewal has sent the government back to perform a rewrite -- either providing justification for its ridiculous demands, or to request something less illogical, like a finite gag order. The government has availed itself of many judicial rubber stamps over the years, but it looks like it's still running into resistance on both coasts: Paul Grewal in California and John Facciola in Washington D.C.

The ACLU has also been engaged in this fight against government secrecy since early last year, bringing more attention and legal expertise to an issue that hasn't achieved the terminal velocity of mainstream media attention. It's a bit more trench warfare, pitting magistrate judges and amicus briefs against the DOJ's assumption that it should have whatever it asks for, because terrorism, drugs, grand juries or whatever.

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  • identicon
    JGWest, 9 Feb 2015 @ 1:55pm

    So why? Why would the government want an indefinite gag order without providing any reasons?

    Perhaps the issue is not potential notification to the potential criminals... instead, might it be to avoid notification to the public about what the government is doing?

    Because if the subjects of the warrant are notified, they or their supporters can publicize the fact that the government's request was based on protected activity, or was over-reaching, or was malicious...

    And the government can't exactly say that this is the reason for the indefinite gag order, hence silence...

    reply to this | link to this | view in chronology ]

  • identicon
    David, 9 Feb 2015 @ 2:00pm

    Who is making the call here?

    “In an era of increasing public demand for transparency about the extent of government demands for data from providers like Yahoo!, this cannot stand,” Grewal wrote.

    This sounds like Grewal labors under the delusion that the government is reporting to the public as its servant.

    Does he consider the U.S.A. a republic?

    Wait, it would appear that it formally still is. Looks like somebody forgot to file the paperwork.

    reply to this | link to this | view in chronology ]

  • icon
    Anon E. Mous (profile), 9 Feb 2015 @ 3:40pm

    Amazing how the U.S. Government's DOJ will flout even a judges ruling to get what they want. First Judge does his job and tells the DOJ point blank your request is to broad, ain't going to happen.

    Does the DOJ narrow their scope to follow the law? Nope, they just play spin the wheel and go to a different judge in a different jurisdiction to get what they want.

    It's painfully obvious how out of control law enforcement connected to the U.S. Government is and the tactics they will use to deceive the court and those who they are trying to get information from, all while misleading the courts and outright lying to Judges.

    And once again this is why if your a defendant, you will be hard pressed to get a fair trial when the DOJ outright leaves out things in disclosure and misleads the court to effect their case.

    Long gone are the days when you are innocent until proven guilty, now it's your guilty unless you can prove your innocence.

    reply to this | link to this | view in chronology ]

    • icon
      madasahatter (profile), 9 Feb 2015 @ 6:27pm


      There is a book (Three Felonies a Day I believe) that says the average person commits three felonies (or more) everyday. The reason is there some many regulations, such as environmental regulations, the average is largely ignorant of and thus accidentally violates routinely. Thus anyone could be charged with a felony if a prosecutor decides you are worth the trouble to go after.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Feb 2015 @ 5:15pm

    Who needs indefinite gag orders when you can get a 25 year gag order like the NSA? The effect is pretty much the same.

    By the time the gag order dies, the information is almost certainly too long gone to be of use or interest to very many.

    But of seemingly much more importance to the current crooks in power, 25 years from now no one will be able to make anyone involved be accountable for their terrible actions and breaking of peoples' rights.

    reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 9 Feb 2015 @ 6:08pm

    Like that'll help...

    The government will come back with two words on the paper: "National security." Grewal will say, "Ok."

    That will be it.

    reply to this | link to this | view in chronology ]

  • icon
    Padpaw (profile), 9 Feb 2015 @ 11:18pm

    Whoever is in charge of yahoo in the states might want to be careful lest they end up as the latest person that murders their family then commits suicide.

    Happens a lot lately to people that do not lick the boots of those in charge

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Feb 2015 @ 7:39am

    "violate the company’s free speech rights"

    I still want the company is an individual law revoked, but im content for now to see this stupid law thrown in their faces

    A company is not an individual, the individuals in that company are individuals........the INDIVIDUALS of that company have free speech, not an inanimate entity

    reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 10 Feb 2015 @ 7:55am


      This. Corporations are legal fictions, not people, and should have no rights whatsoever. They have privileges that we as a society grant them.

      reply to this | link to this | view in chronology ]

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