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New DOJ Policy on Gag Orders Is Good, But the Courts Could Have Done Better

The Department of Justice is making significant changes to its policy for seeking gag orders under Section 2705 of the Stored Communications Act. These orders routinely accompany search warrants, subpoenas, and other requests to service providers and prevent the companies from notifying users that their information has been obtained by the government. Last year Microsoft filed a lawsuit arguing that Section 2705 violates the First Amendment, and it appears that the DOJ made the policy change rather than risking a broad ruling that the law is unconstitutional. (That lawsuit should not be confused with a different case involving DOJ access to Microsoft user data stored in Ireland that will soon be heard by the Supreme Court.)

Under the new policy, federal prosecutors must demonstrate an “appropriate factual basis” in order to apply for a gag order. Gags must also be limited to a duration of one year or less “barring exceptional circumstances.” By comparison, Microsoft’s complaint explained that it received over three thousand 2705 gag orders between 2014 and early 2016, two-thirds of which had no fixed end date.

So the policy is an improvement. Microsoft deserves serious praise for pursuing the lawsuit. The government had little incentive to fix the problem outside of litigation, and Microsoft’s strong First Amendment arguments forced its hand. But we’re not ready to declare the policy an “unequivocal win,” the way Microsoft did.

Above all, the government will still be able to obtain 2705 gag orders without satisfying the extremely high bar the First Amendment places on “prior restraints.” Under Supreme Court precedent, gag orders like these must be necessary to prevent imminent danger to a core government interest, and the requirement that the prosecutors merely demonstrate an “appropriate factual basis” doesn’t cut it. And while it’s certainly encouraging that the DOJ promises not to seek indefinite gags, courts should require much narrower tailoring of time limits on these orders.

In addition, we’re naturally skeptical of this change coming in the form of an administrative policy that can be revoked whenever the DOJ sees fit. Microsoft won an important preliminary victory in February when a federal court in Seattle ruled that its First Amendment challenge survived a motion to dismiss. And just this year, Adobe and Facebook also brought successful challenges to Section 2705 gags. It appeared the tide was turning definitively against Section 2705, so we’d much rather have seen a binding court ruling or new legislation setting out tighter rules for these gag orders.

Finally, on its face, the policy does not apply to outstanding gag orders, particularly those without a fixed end date. As we know from the closely related context of National Security Letters, indefinite gags may improperly prevent providers from informing their customers for many years. As with NSLs, therefore, we’ll continue to look for ways to enforce the First Amendment against overbroad gag orders.

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