New DOJ Policy Restricts Use Of Warrant/Subpoena Gag Orders

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.