Lawmakers, advocates weigh restrictions on DOJ gag orders

Lawmakers on both sides of the aisle, along with media and technology companies, slammed the Department of Justice (DOJ) for its increasing use of gag orders that block communications companies from notifying those whose records have been secretly seized by the government.

The department is under widespread scrutiny after seizing phone and email records and blocking communication companies from notifying journalists, two Democratic lawmakers and even former White House counsel Don McGahn that their records had been obtained.

At a House Judiciary Committee hearing that Rep. Andy Biggs (R-Ariz.) called “remarkably agreeable,” lawmakers and advocates found consensus for placing limits on DOJ’s ability to access such records without notification and pushed stricter standards for the judges that ultimately grant them.

“Rather than providing Americans with meaningful notice that their private electronic records are being accessed in a criminal investigation, the department hides behind its ability to ask third-party providers directly. They deny American citizens, companies, and institutions their basic day in court and, instead, they gather their evidence entirely in secret,” committee Chairman Jerry Nadler (D-N.Y.) said.

“Just because it is easier for prosecutors to seek sweeping amounts of data from these service providers, does not mean that they should be allowed to do so,” he added. 

In the most recent cases, DOJ sought records from Google, Apple and Microsoft while also arguing a gag order blocking them from notification was necessary either for national security reasons or to protect its investigation.

Tom Burt, vice president of customer security and trust with Microsoft, said since 2016 the company has gotten as many as 3,500 demands from law enforcement that include gag orders.

“And these are just the demands on Microsoft. Add the demands likely served on Facebook, Apple, Google, Twitter and others, and you get a frightening sense of the mountain of secrecy orders, used by federal law enforcement in recent years,” he said, with each company served a “boilerplate warrant and secrecy order” that when challenged go before judges with few legal tools to deny them.

Microsoft has fought some of the gag orders, as was the case with Google, who fought to alert The New York Times that DOJ had sought reporter records.

But Eve Burton, chief legal officer for the Hearst Corporation, said the burden shouldn’t fall on communications companies to fight for notification.

“Presently, the protection of our constitutional interests are in the hands of middlemen who have no incentive to battle with the government on behalf of customers or citizens. To the contrary, in my experience, some communication companies have historically seen it as their responsibility to assist the Government in obtaining what it wants,” she said.

Rep. Mary Scanlon (D-Pa.) called it a Catch-22, where those who may want to fight the seizure of their records are often unaware they are even being sought if the communications company that holds their data doesn’t fight for the right to notify them. 

DOJ said earlier this month it would no longer “seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs.”

But media advocates like Burton are asking Congress to codify DOJ’s media policy, ensuring it can’t be changed on a whim.

Burt said Congress also needs to place limits on secrecy orders beyond those seeking data from members of the media, noting that he had similarly been barred from notifying a city government that one of its employees’ records had been sought.

Rep. Zoe Lofgren (D-Calif.) said Congress should consider covering data stored in the cloud under the Fourth Amendment, which protects against unreasonable searches and seizures.

“I do believe that the situation we have here is an end run on the protections that the Fourth Amendment is supposed to provide to every American,” she said. “The fact that the information is stored in the cloud instead is really meaningless. The expectation of privacy on the part of the individual is that it’s their data, and I think we really need to revisit the whole scheme that we have.”

But lawmakers and witnesses also pushed for a rewrite of the standards judges weigh when secrecy orders are challenged, with Biggs complaining judges needed a “stick” to use on DOJ rather than just rubber stamping gag orders. 

Several witnesses backed a “strict scrutiny” standard, pushing a presumption of openness while requiring the government to prove a compelling government interest for a gag order and demonstrate a national security concern.

“It is really a self regulation concern. You cannot have the Department of Justice being prosecutor, judge and jury. They determine when you get notice; they determine what you know,” Burton said.  

Burt also wants to see Congress “end indefinite secrecy order for good,” placing time limits placed on how long they can be imposed. He suggested an initial 90-day gag order with DOJ having to go back to court to extend it for another 90 days.

“The courts have not exactly covered themselves in glory and part of the problem here is that these judges are getting thousands of these things, and they don’t want to go into the weeds on some of these issues,” said Jonathan Turley, a professor at George Washington University Law School who previously testified before the committee arguing against impeachment of former President Trump. 

But he said Congress likewise needs to give judges the tools to pick apart the government’s secrecy requests.

“We’re just getting boilerplate over and over again, and that’s not saying anything [about the case.] You’re going to have to structure what a court has to find, and what a court must establish in writing, if we’re going to be able to do anything,” he said.