The bipartisan bill (HR 7072) seeks to limit the use of confidentiality orders that government prosecutors often issue to prevent companies from notifying their users of requests for such data made under the Privacy Act. stored communications. These so-called gag orders are designed to protect potential victims of crime and shield ongoing investigations have not been compromised, although they have drawn criticism from digital rights advocates for covering up claims of data that infringes the privacy of individuals, sometimes without an end date.
“The problem here is that the government comes looking for your data, but you never find out because the companies are prevented from telling you,” said Andrew Crocker, a senior attorney with the Electronic’s civil liberties team. Frontier Foundation, a non-profit organization. Unlike physical searches of a person or their property, searches of digitally stored information occur “behind closed doors,” Crocker said.
There isn’t a lot of publicly available data on the use of confidentiality orders in this context, aside from figures released by tech companies that are typical targets for orders. Microsoft, for example, says it received 2,400 to 3,500 secrecy orders each year between 2016 and 2021, representing at least a quarter of all legal requests the company has faced from security forces. federal order.
The bill, known as the NPO Fairness Act, would require government prosecutors to demonstrate in greater detail why a gag order is necessary and would limit the length of orders. The House passed the measure by voice vote on June 21, which was considered by the Senate.
The bill is backed by a group called the Reform Government Surveillance coalition, which represents companies such as Google, Microsoft and
Google is seeing non-disclosure orders issued for “an increasing number” of government requests for user data, according to Kent Walker, president of global affairs and chief legal officer at the company.
“This reform will ensure that gag orders are only issued when warranted and for reasonable periods of time,” Walker said in a blog post about the bill.
Companies like Microsoft have challenged secrecy orders in court, arguing that they unfairly restrict freedom of expression. Courts have generally concluded that, to survive legal scrutiny, the government must give a compelling reason why such speech should be restricted by a confidentiality order.
In the face of legal reluctance, the Department of Justice issued a policy in 2017, this tightened guidelines for secrecy orders, directing prosecutors to only seek them when the facts of a case support their issuance. The policy also generally prohibits the use of non-disclosure orders that last indefinitely.
The Justice Department press office did not immediately respond to a request for comment. A Google spokesperson declined to comment beyond their blog post. A Microsoft spokesperson declined to comment beyond the company’s audience. Declarations support the bill.
Another factor driving interest in further changes to confidentiality orders is their recent use in Justice Department efforts to seize emails and phone records of journalists and members of Congress.
Under the OND Fairness Act passed by the House, courts would have to provide a written decision clearly explaining why it is necessary for the subject of a digital search not to know. This revision aims to address concerns from digital rights advocates that courts are “approving” secrecy orders, particularly when national security concerns are cited.
The law would encourage judges to be “a bit more specific and rigorous” in reviewing government requests for a non-disclosure order, said Kellen Dwyer, a former judge-departing civil servant who co-runs the Alston & Bird practice. National Security and Digital Crimes LLP.
This “higher bar” could make a difference in some cases, though it’s still similar to the DOJ’s current position, Dwyer said.
Writing tougher standards in the stored communications law could help ensure secrecy orders are justified, rather than letting prosecutors simply refer to reasons listed in the statue, such as potential interference in an investigation. said Jennifer Granick, surveillance and cybersecurity adviser at the American Civil Liberties Union.
“So it has to go beyond politics,” Granick said. “There are no teeth in the law. »