New DOJ Policy Restricts Use Of Warrant/Subpoena Gag Orders

from the finally dept

It appears public pressure -- coming in the form of lawsuits and gag order challenges -- has finally had an effect on the DOJ. Ellen Nakashima is reporting the Justice Department will no longer attach indefinite gag orders to routine requests for data and communications.

The Justice Department has issued new guidelines aimed at providing more transparency around prosecutors’ secret demands for customer data stored on tech firms’ servers.

The binding guidance, approved last week by Deputy Attorney General Rod J. Rosenstein, ends the routine imposition of gag orders barring companies from telling customers that their email or other records have been turned over in response to legal demands.

It also bans — in most cases — indefinite gag orders that forbid a company from ever telling users that their data have been searched.

This new guidance has resulted in Microsoft dropping its lawsuit against the DOJ over its gag orders. This will likely be followed by similar dismissals. There are, of course, some exceptions to the guidelines that will still allow the DOJ to deploy gag orders. But the policy at least (mostly) forbids the FBI (and others) from gagging companies forever.

The new guidance requires prosecutors to tailor their applications for secrecy orders to ensure that they are necessary, and explain why. For instance, a prosecutor might fear that the target will destroy data if he or she learns of the probe. Or the target might try to flee. The assessment must be “individualized and meaningful.”

And now there is a time limit: “Barring exceptional circumstances,” a gag order may be sought for “one year or less.”

Now, for the bad news. Anything the DOJ can claim is national security-related will probably still come with a gag order attached. In addition, this guidance has zero effect on the FBI's favorite paperwork, National Security Letters. The upside is normal warrants and subpoenas won't be treated as requests so sensitive no one should be able to talk about them, much less inform targets their data/communications are being sought.

The new policy also contains a couple of advantages for the DOJ. First, the more lawsuit dismissals this leads to, the less chance there is of a court handing down a precedential ruling severely restricting the use of gag orders. Second, the voluntary nature allows the DOJ to resume its indiscriminate deployment of gag orders at any time. While this development is welcome, it should be noted this is an area where legislation would be far more effective than internal policy shifts if US tech companies would like to see the change become permanent.


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Anonymous Coward, 25 Oct 2017 @ 7:05am

    Law vs Guidelines

    "The Justice Department has issued new guidelines"



    Justice Department is supposed to obey formal law ... not invent its own interpretations of the law ("guidelines")

    Plus, new guidelines were reluctantly issued because the old guidelines were unlawful. DOJ personnel who acted unlawfully with the old policy should be prosecuted

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

    • identicon
      Anonymous Coward, 25 Oct 2017 @ 9:53am

      Re: Law vs Guidelines

      Justice Department is supposed to obey formal law

      Well, that would require Congress to pass a law allowing gag orders... but "Congress shall make no law ... abridging the freedom of speech". It dosen't say the Justice Department can't do it. Loophole!

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

  • identicon
    Anonymous Coward, 25 Oct 2017 @ 7:26am

    Something I've always wondered about NSL's. Are you bound by them as soon as you've officially received them much like you are considered "served" and have a legal responsibility to show up in court when you receive a subpoena, or are you only bound by them once you've actually opened and read the letter like agreeing to an NDA? What would happen if everyone at a company just refused to open or read anything from the FBI? Obviously, they wouldn't know what's being requested, but could they then legally go out and say, "we don't know what's in them, but the FBI keeps trying to send us letters".

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

  • identicon
    Anonymous Coward, 25 Oct 2017 @ 7:29am

    Let me guess - from this point forward, everything will be considered "national security-related".

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

  • identicon
    John E Cressman, 25 Oct 2017 @ 8:59am

    FAIL

    It's still a government fail. This should be coded in LAW, not a "binding" policy. Congress has failed this country and failed to protect basic Constitutional rights.

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

    • identicon
      Anonymous Coward, 25 Oct 2017 @ 12:33pm

      Re: FAIL

      This should be coded in LAW

      It is (1st amendment), except for the part that allows them to do this in certain cases.

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

  • identicon
    Anonymous Coward, 25 Oct 2017 @ 11:19am

    Not Forever?

    But the policy at least (mostly) forbids the FBI (and others) from gagging companies forever.

    I'm surprised they didn't change it to "forever minus a day".

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

    • icon
      Anonymous Anonymous Coward (profile), 25 Oct 2017 @ 11:28am

      Re: Not Forever?

      The problem with that is how does one know that forever ends tomorrow? Otherwise, the DoJ's notion of math certainly comports with that thought process.

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

  • identicon
    Isma'il, 25 Oct 2017 @ 11:51am

    Everyone Wins Except for the People!

    As many have suggested, this is a mere smokescreen. Think about it for a minute:

    With this new "guideline," the DOJ can appear to be "responsive" to public concern, without actually changing their underlying behaviour. They'll just "reclassify" everything in order to impose the gag order again.

    Also, the major tech companies, like Apple, Google, Microsoft, and ISPs get to look good because of the apparent *fighting for your rights* act which they will say resulted in this new "guideline" issued by the DOJ.

    In reality, this changes nothing, because either the tech companies and ISPs will require so much paperwork to be filed so that people can find out if they're a target of surveillance, the DOJ will just reclassify a majority of these gag orders as NSLs, or both.

    No matter which way the chips fall, the ordinary citizen loses.

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


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Techdirt Gear
Shop Now: Copying Is Not Theft
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.