Facebook Reports More Than Half Of Gov't Demands For Content And Data Come With Gag Orders Attached

from the greater-transparency-reveals-more-secrecy dept

US government requests for Facebook data are up, according to the company's latest biennial transparency report. Total requests jumped from 23,000 to 26,000, as compared to the first six months of 2016. Overall, it's an increase of about 12,000 requests over 2015's total.

At this point, Facebook is fielding about 1,000 more requests a month as compared to 2015. While there's not a whole lot of detail in the presented data, the social media platform is now able to report something it hadn't been able to do before the passage of the USA Freedom Act. Both of the 2016 reports now show what percentage of data requests come with a gag order attached.

According to the report, more than half of the orders received in 2016 came with gag orders: 56% for the first half of the year and 50% in the second. Gag orders are standard operating procedure for National Security Letters but those only make up a small percentage of the requests Facebook receives: less than 1,000 total for all of 2016.

A majority of the requests are search warrants, which often come with limited-time gag orders. Or at least they should be limited-time. As we saw in Adobe's recent court win, search warrants appear to be arriving with indefinite gag orders when only delayed notification is justified. Facebook has been pushing back against over-broad requests and government secrecy, but its success has been limited.

Also of interest is the lack of FISA orders. For the first time since Facebook began reporting these numbers, it received no FISA orders for content or non-content data. This would seem to confirm an apparent Section 702 blockage at the FISA court. As was noted here earlier, the FISA court apparently approved zero government requests under Section 702 (internet content/non-content collections) in 2016. The last approved order of 2015 would have carried over into the first couple of months of this year, which may be why Facebook shows FISA requests in the first six months of last year, but nothing past the point of that order's expiration.

So, the government has begrudgingly agreed to a little more transparency, but is ensuring much of what's behind the numbers remains firmly in its grasp. Gag orders accompany at least half the requests the government sends out, and the number of requests continues to increase. At this point, Facebook fields a couple thousand gagged orders a month, with most, presumably, tied to sealed cases and indictments, which kind of makes a mockery of this whole "open court" system. Considering Facebook maintains control of users' accounts, communications, and data on its platform, it makes little sense to withhold notification for extended periods, if not indefinitely.

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