U.S. Magistrate Judge James Ornstein has ruled against the DOJ’s gag order practices on tech firms saying users should know when the government is searching their data. The judge denied the Justice Department’s 15 requests against tech firms saying they did not produce enough information to convince him the secrecy was reasonable. Facebook was among the 15 requests for a gag order to prevent it from disclosing grand jury subpoenas.
“The government cannot…obtain an order that constrains the freedom of service providers to disclose information to their customers without making a particularized showing of need,” he wrote. “The boilerplate assertions set forth in the government’s applications do not make such a showing.”
“The more you look at how things are done, the more you begin to realize secrecy has become way too routine,” said David Howard, corporate vice president and deputy general counsel for Microsoft. “We’re glad to see more scrutiny across the board as judges dig into the issue.”
Most technology firms have a standing policy to inform their users if the government is asking to see their data, unless they’ve been told not to, gag order.
Judge Orenstein said the gag order applications he received all asserted that notifying customers of subpoenas for their account information would jeopardize the underlying investigation by giving suspects the opportunity to flee, destroy evidence or change their behavior. But the applications didn’t say how the customer whose information was sought related to the investigation, he wrote, citing instances where subpoenas seek records from the account of a target’s victim.
“In such circumstances, there is simply no reason to presume that disclosure of the subpoena to the customer whose records the government seeks will harm the investigation,” he wrote.
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