Judge Doesn't Care Much For DOJ's Boilerplate, Refuses To Grant One Year Gag Order

from the no,-you-shut-up dept

Last week, the DOJ changed its policy on gag orders. In the past, the DOJ loved attaching indefinite gag orders to nearly everything it submitted to service providers. This prompted some backlash in the form of courtroom challenges. It appears the DOJ has decided to choose its battles more carefully. Gag orders can still accompany warrants and subpoenas, but they now have a more definitive end date.

Barring exceptional circumstances, prosecutors filing§ 2705(b) applications may only seek to delay notice for one year or less.

Naturally, the government has taken its own policy to mean it should ask for the new maximum in every case. A subpoena gag order requested by the US Attorney's Office asks for a year's worth of silence from Google. But Judge Orenstein -- one of the members of the post-Snowden "magistrates revolt" -- doesn't find the government's boilerplate persuasive. (h/t Riana Pfefferkorn) From the order [PDF]:

The government seeks an order requiring subpoena recipient Google Inc. ("Google") not to notify any person (aside from Google's counsel) of the subpoena's existence for a period of one year. Docket Entry ("DE") 1 ("Application"). For the reasons set forth below, I deny the motion without prejudice to renewal. In short, the government has not made the factual showing necessary to secure the relief it seeks, and it does not explain why non-disclosure is needed for an entire year.

Judge Orenstein then goes on to deconstruct the government's boilerplate.

First, the government continues to rely on its earlier formulation that the investigation it seeks to advance through the issuance of a subpoena "is neither public nor known to all of the targets of the investigation." That suggests that there are investigative targets who do know of the investigation's existence. If that is the case, then the risk already exists that such targets will take steps to flee, alter or destroy evidence, or otherwise impede the investigation's progress; at a minimum, I cannot infer that Google's disclosure of the subpoena's existence would create or exacerbate any such risk.

Second, the Application provides no information concerning the person about whom the government seeks to secure information from Google: I know nothing of his or her status as a witness, victim, subject, or target with respect to the investigation; nor does the record reveal whether the person has any relationship with any subject or target that might give him or her an incentive to reveal the subpoena's existence and thereby potentially impede the investigation.

Third, while the Application reports that the subject account "is believed" (by some unidentified person) to be held or used by an individual not in custody who lacks full knowledge of the investigation, it provides nothing to shed any light on the basis for that belief.

Fourth, even assuming the belief to be well grounded, it is too vague to support the finding the statute requires. The proposition that the account holder or user does not yet know "the extent of the investigation" suggests that that person does know something about it – but whether that knowledge suffices to provide the ability or motivation to take any action that would impede the investigation is impossible to discern. I assume the government's concern is genuine, and that it may well have a sufficient factual basis, but the existing record gives me no way to predict, as I must to grant the requested relief, that Google's disclosure of the subpoena will have any adverse effect on the government's investigation.

The whole order is a fun read, with Orenstein showing his displeasure with the government's automatic demand for the maximum allowable-gag order length despite providing zero factual assertions backing its claimed need for 365 days of secrecy. Orenstein also denies the government's request to have the docket sealed indefinitely, explaining this makes no sense when it's only asking for a yearlong gag order for the subpoena.

Then he cuts straight to the heart of the matter: the government would undoubtedly ask for a longer gag order (without any specific justification) if it could. But it can't. So it's chosen to ask for the maximum allowed right out of the gate.

Until very recently, when the government sought non-disclosure orders under the SCA, it would typically avoid placing any temporal limit on the scope of the proposed order – thus effectively imposing a permanent gag on the subpoena recipient where the request was granted. The instant Application, however, seeks to compel non-disclosure "for a period of one year from the date of the proposed Order." That change appears to reflect a new policy that, "[b]arring exceptional circumstances, [such] applications may only seek to delay notice for one year or less."

But while the government plainly understands that determining the duration of non-disclosure is a discretionary matter for the court, it provides no reason for seeking the maximum duration consistent with its new policy. Thus, for example, I have no information as to the anticipated length of the remainder of the investigation to which the subpoena pertains, or whether the government anticipates that any events other than the arrest or trial of any remaining targets will obviate the need for continued secrecy. In addition to hobbling the court's ability to reach a reasoned decision, that lack of information seems inconsistent with the government's own policy. As the Rosenstein Memo makes clear, "[i]n applying for a § 2705(b) order, prosecutors should tailor the application to include the available facts of the specific case and/or concerns attendant to the particular type of investigation." Id. at 2. Accordingly, should the government renew its application, I respectfully direct it to include an explanation of the need for the proposed duration of the non-disclosure order it seeks.

The government will have to fix its application before Orenstein will consider approving its gag order request. This is some very good pushback from the magistrate -- one who's often held the government's feet to the fire. The new policy is supposed to prevent automatic requests for max gag with every subpoena and warrant, but the government has interpreted it to mean placing an opening bid for one year's silence and negotiating from there. Orenstein makes it clear he won't be accepting boilerplate justifications for lengthy gag orders.

Of course, it could be this application wasn't meant to be seen by Orenstein. It almost looks like the government hoped to slide it by the New Guy on the SDNY staff: Judge Sanket Bulsara. Its gag order request [PDF] came with a canned proposed order -- one that includes a blank line for Bulsara to sign it.

Somewhere in New York, there's an US Attorney cursing the magistrate rotation.

Filed Under: doj, gag order, james orenstein, magistrate's revolt, subpoena
Companies: google