Can the government stop you from finding out it’s been looking through your private Facebook content as part of a “secret” investigation that’s not actually secret? That’s the question raised by an alarming case pending in the Washington D.C. Court of Appeals. Facebook has described the investigation as "known to the public," and the timing and venue match the January 20th, 2017 Presidential Inauguration protests (known as “J20”), the investigation of which is indeed quite public. But even if the warrants pertain to another investigation, the government should not be allowed to impose gag orders with respect to any information that is already publicly known.
Last week, EFF led a group of civil society organizations that included Access Now, the Center for Democracy and Technology, and New America’s Open Technology Institute in filing a brief demanding that the court apply a stringent constitutional test before enforcing gag orders accompanying a number of secret search warrants. We argued that the First Amendment rarely if ever allows gag orders in such cases, where the government seeks to limit public scrutiny of high-profile and potentially politicized investigations.
Here’s what we know: Facebook is fighting gags associated with several search warrants for user content. The company thinks this case is so important that it sent out a kind of bat signal to groups like EFF. Although the case is under seal, Facebook petitioned the D.C. Court of Appeals (the District’s highest court) to open the proceeding up to amicus briefs and to reveal that Facebook argues that “neither the government’s investigation nor its interest in Facebook user information” is a secret.
Although we can’t be sure, we have a hunch the search warrants are related to the J20 protests. On January 20, the day of President Trump’s inauguration, police in D.C. arrested hundreds of protesters, charging many with felony rioting. Over the last several months, the press has reported on the controversial and wide-ranging investigation into the protests, which apparently included police infiltration of planning meetings. Additionally, in late January, some defendants received notice from Facebook that their non-content account information had been subpoenaed by law enforcement. Their attorneys sought to quash those subpoenas, and we believe the timeline in this case suggests the government sought to get even more private information, including account content, using warrants to Facebook accompanied by gag orders.
Whether or not this case involves the J20 protests, the fact that Facebook says the underlying investigation is already public is almost certainly enough to strike down the gag orders. Government gags that prevent a provider from notifying its users are an example of prior restraints, which are the “most serious” and “least tolerable” infringement on First Amendment rights. As a result, the Supreme Court has said they are only constitutional if they meet the most “most exacting scrutiny.”
But despite the strong presumption against prior restraints, the government gets gag orders all the time. Two of the most commonly used gag authorities are National Security Letters, which EFF continues to challenge on appeal in the Ninth Circuit, and nondisclosure orders issued under the Stored Communications Act, 18 U.S.C. § 2705, at issue in this case.
There are strong arguments that Section 2705 nondisclosure orders are unconstitutional all or nearly all of time. Just in the last several months alone, Microsoft has sued to have Section 2705 declared unconstitutional on its face, while Adobe succeeded in convincing a court to strike down an indefinite Section 2705 gag.
But the apparently public nature of the investigation here makes the gags even more egregious. In order to uphold a prior restraint, a court must be satisfied that it is necessary to protect against a “a clear and present danger or a serious and imminent threat” to an important government interest. As we point out in our brief, if the government’s investigation into the Facebook accounts is already known, there’s no way that a gag can prevent any harm flowing from notifying the users and allowing them to challenge the search warrants. We point to examples from two cases in which the Supreme Court struck down gags that prevented the press from reporting sensitive information that had already been revealed in open court.
Although the docket is sealed, it’s our understanding that the court has set this case for oral argument in September 2017. We have requested an opportunity to address the court to represent the public’s interest in ensuring that prior restraints such as this don’t issue without the most exacting scrutiny our court system is prepared to provide. We will keep you informed of any updates we receive.