April 23, 2014
The ACLU has jumped into a troubling legal fight, in which it appears that the DOJ has issued gag orders against Twitter and Yahoo concerning grand jury subpoenas that have been sent to both companies. This case is one we mentioned last week where magistrate judge John Facciola asked the two companies to weigh in, as he appears unconvinced that the government’s request is sound. However, the whole thing is happening under seal, which the ACLU feels is inappropriate, given the importance of allowing companies to respond freely to such requests, without being gagged.
The ACLU filed a motion last night seeking to represent the public’s interest in open court proceedings when the government seeks gag orders on Internet companies. We know about the three cases only because the magistrate judge pushed back on the government, inviting Yahoo and Twitter to weigh in and ordering the government to make its legal arguments public. The government appealed those orders to a district court, where the judge ordered the appeals sealed. The ACLU is now moving to intervene in the district court for the purpose of opening these gag order proceedings to public scrutiny. In a democracy, if your government is going to gag someone from speaking, it should publicly explain why.
The federal government has an awesome array of tools and technologies in its investigative arsenal, and it often goes to great lengths to shield its tactics from outside scrutiny. Not only does this secrecy prevent people from challenging surveillance used against them, but it also means that elected officials can’t openly debate the underlying policies, and communities can’t discuss their government’s actions.
Traditionally, gag order applications are considered ex parte – meaning with only the government’s argument on the record before the court. However, Magistrate Judge Facciola noted that the government’s request in this case raised controversial legal questions, and so invited Twitter and Yahoo to respond. (In one case, the government withdrew its gag order application after Judge Facciola invited Twitter’s participation.) He also ordered the government file public copies of its gag order applications with limited redactions.
It’s good to see at least some pushback on the feds’ attempt to get information and to silence companies from saying anything about it. But it’s still quite troubling that they seem to assume they have near free rein to do so in the first place. Kudos to the ACLU for stepping in as well, and representing the public interest.