I recently wrote about efforts by prosecutors and other government agents to keep their work secret, not only from the public, or from the targets of their investigations, but also from the people whose help they need to investigate the matter as well.
On February 5, a magistrate judge in San Jose put a limit – a very small limit – on the government’s ability to keep their investigations permanently secret. The government’s actions, and the case itself has serious implications for the future of web-based e-mail, cloud computing, and outsourcing in general.
The case itself was relatively routine. And that’s part of the problem. The government, in the course of an investigation, wanted to read someone’s e-mail. It could have been a drug dealer, a terrorist, of the emails of an entire corporation. We have no idea. So the government did what the government does – it issued a grand jury subpoena to Yahoo! For the contents of their customer’s e-mail.
And the government did what the government almost always does. It got an order pursuant to the Stored Communications Act, 18 USC 2705 precluding Yahoo! From telling its customer about the subpoena. Well, actually delaying it. But in this case, and in many other cases, the government sought an order delaying the notification “until further order of the court.” Or in other words, “until pigs have wings.”
It was this condition that the San Jose court balked at, noting that, after the case was over, the government would have little incentive to expend time and resources lifting the gag order. So effectively, the order amounted to a permanent ban on telling the target that someone was reading their communications. The Court refused to do so.
But the real problem here is the statute itself. Gag orders and nondisclosure orders can be useful. There are cases – limited cases – where disclosure of the existence of an investigation can do real harm. Witnesses can be killed. Evidence destroyed. Fugitives flee. In those cases, upon a showing of specific and articulable facts – key word here, facts – a limited gag order for a limited time should be issued. A day. A week. A few weeks.
On the other hand, it is clearly inconvenient for the government if the subject or target of an investigation – or worse, his or her lawyer – knows about an investigation. They can do horrible things like prepare a defense, interview witnesses, collect documents and records, present defenses to the prosecutors, judges or even the media.
If the government had its druthers, it wouldn’t tell anyone about the investigation until it perp-walked the target in front of awaiting cameras (Gee. I have NO idea how the media got here…)
The presumption should always be in favor of openness. Particularly where the government seeks to do things like read someone’s e-mail. We should think of reading email as kicking in the target’s door and rummaging through their correspondence and files. Cause that’s what it is. Sure, there are times when you should be allowed to do a “black bag” job – surreptitiously break into the home and read files, but the presumption under Rule 41 and the Fourth Amendment is that these things are open and limited, and that you leave an inventory of precisely what you looked at and took.
That’s not what we do electronically.
As more and more information is maintained online, the government (and others) has the ability to seize our files, our correspondence, our personal details, our movements, our associations, and just about everything, without our knowing. All of this data – and even our stored files and records – are held by “third parties.”
As such, the third party has not only the ability to turn over our stuff, but also the ability to do so without our knowing. It’s like the world’s worst roommate ever.
The statute here, the Stored Communications Act, provides:
(a) Delay of Notification.—
(1) A governmental entity acting under section 2703 (b) of this title may—
(A) where a court order is sought, include in the application a request, which the court shall grant, for an order delaying the notification required under section 2703 (b) of this title for a period not to exceed ninety days, if the court determines that there is reason to believe that notification of the existence of the court order may have an adverse result described in paragraph (2) of this subsection; or
(B) where an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury subpoena is obtained, delay the notification required under section 2703 (b) of this title for a period not to exceed ninety days upon the execution of a written certification of a supervisory official that there is reason to believe that notification of the existence of the subpoena may have an adverse result described in paragraph (2) of this subsection.
(2) An adverse result for the purposes of paragraph (1) of this subsection is—
(A) endangering the life or physical safety of an individual;
(B) flight from prosecution;
(C) destruction of or tampering with evidence;
(D) Intimidation of potential witnesses; or
(E) otherwise seriously jeopardizing an investigation or unduly delaying a trial.
(3) The governmental entity shall maintain a true copy of certification under paragraph (1)(B).
(4) Extensions of the delay of notification provided in section 2703 of up to ninety days each may be granted by the court upon application, or by certification by a governmental entity, but only in accordance with subsection (b) of this section.
(5) Upon expiration of the period of delay of notification under paragraph (1) or (4) of this subsection, the governmental entity shall serve upon, or deliver by registered or first-class mail to, the customer or subscriber a copy of the process or request together with notice that—
(A) states with reasonable specificity the nature of the law enforcement inquiry; and
(B) informs such customer or subscriber—
(i) that information maintained for such customer or subscriber by the service provider named in such process or request was supplied to or requested by that governmental authority and the date on which the supplying or request took place;
(ii) that notification of such customer or subscriber was delayed;
(iii) what governmental entity or court made the certification or determination pursuant to which that delay was made; and
(iv) which provision of this chapter allowed such delay.
(6) As used in this subsection, the term “supervisory official” means the investigative agent in charge or assistant investigative agent in charge or an equivalent of an investigating agency’s headquarters or regional office, or the chief prosecuting attorney or the first assistant prosecuting attorney or an equivalent of a prosecuting attorney’s headquarters or regional office.
(b) Preclusion of Notice to Subject of Governmental Access.— A governmental entity acting under section 2703, when it is not required to notify the subscriber or customer under section 2703 (b)(1), or to the extent that it may delay such notice pursuant to subsection (a) of this section, may apply to a court for 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.
Now on its face, this seems reasonable. And that’s why Congress passed it. It was relatively uncontroversial at the time. But hidden in the language are traps.
First sentence. “Where a court order is sought, include in the application a request, which the court shall grant, for an order delaying the notification…” So if the government requests delayed notification, and certifies that the factors noted exist, the court “shall grant” the order. No discretion.
In the words of Pope Francis, “who am I to judge?” Um, you are a judge. Better approach, “where the Court finds by a preponderance of evidence, based upon sworn declarations of law enforcement, that [specified harm] is likely to occur, and that no more limited disclosure may be made, the Court may issue an order…” This puts the burden on the government to actually show some harm, and requires the gag order to be as limited as possible.
Second. Secrecy. The reason why grand jury proceedings are secret (and therefore subpoenas are secret) is to generally protect the TARGET of the investigation from adverse publicity. In fact, Rule 6(e)(2)(a) of the Federal Rules of Criminal Procedure provides that “(A) No obligation of secrecy may be imposed on any person except in accordance with Rule 6(e)(2)(B) [relating to jurors, prosecutors, and court personnel.)”
So the recipient of a subpoena is generally allowed to tell ANYONE that they got a subpoena. Gag orders are the exception. In addition, the real reason you gag someone is mostly to prevent the destruction or alteration of evidence. Hey, I will just wipe the emails. Right? Wrong. It’s easy to get an order to Yahoo! to back up the data and store it remotely (so the target can’t alter it). So I can’t imagine a case where the government could argue successfully that a gag order was REQUIRED to prevent alteration of evidence.
Third. Three months. Really? The law assumes that the gag order must exist for three months, and can be renewed. In the San Jose case, the government wanted a permanent gag order. Give them an inch… Should say, “the gag order shall exist only for so long as necessary to prevent the harm for which it was issued, but in no event longer than – hmm… I’m thinking a month … unless the government at the end of this time demonstrates a compelling need to extend the order.” Seems like a good balance.
Fourth. As the San Jose court noted, the government filed its request for a gag order “ex parte.” That means without anyone else present except the prosecutors and the Judge. The Court noted, “at the risk of stating the obvious, that means that no counsel for Yahoo! has appeared, nor has any counsel for the target of the investigation.” As we used to say at DOJ, “there’s no party like an ex parte.” So nobody gets to assert privilege. Nobody gets to assert over breadth. Nobody gets to assert relevance. Pretty much ever.
Fifth. Consequences. If a law enforcement official issues a declaration that all of this harm is likely to occur when they have no real evidence of it (and it is just inconvenient to the investigation) do they go to jail for perjury? Are they fired? Nope. Nothing happens. As far as I can tell, ever.
The Fourth Amendment Loophole
The most troubling thing here is the movement from search warrant to subpoena. Again, these are not Yahoo!’s records (how do you punctuate a word with an exclamation point in the middle?) They are the target’s records. It’s not like the government going to the bank for your bank records. It’s like them reading your mail What’s the difference between reading an email attachment and a Google document?
If the government wanted to read your documents on files on your computer, they could either subpoena you for the records or get a search warrant issued to your house, and go in and take them. But if your records are on someone else’s computer, they issue a subpoena to them for your records.
So think of the government subpoenaing your landlord or mortgage holder (lien holder) for the contents of your house or apartment. Or a subpoena (not a warrant) to the storage facility for the contents of your storage locker. Sure they can get a WARRANT (probable cause, court order, etc.) but a subpoena? Dime a dozen.
But as more records are held by third parties, the government can subpoena these records and you will never know about it. Ever. ‘Cause they will increasingly get these kind of gag orders. Forever.
With Valentine’s Day fast approaching, we can all agree that Diamonds are forever. Gag orders? Not so much.