I agree that it's useless, with the exception of smaller organizations where the key players are involved with everything. In those, the risk of someone going "all Lavabit" and doing something dramatic are a deterrent.
All the government needs to do is give a gag order to the people processing the warrant. The folks putting the transparency report together will truthfully report that no such warrant exists, because they are unaware of it.
This isn't a big spy thing either -- if you've ever worked in a place where one or more executives or a business unit were subject to an investigation of some sort, this happens. The gag orders are there to avoid intentional or accidental disclosure to the custodian of the data in question, which could lead to tampering with or destruction of evidence. Its an uncomfortable situation that many email administrators have found themselves in for many years.
The scary thing about the Section 215 warrants from my perspective as an individual is the difficulty in disclosing things to counsel to get appropriate advice, broad scope and indefinite nature of the gag order. It was one thing when these laws were used to investigate KGB agents -- now you have orders of magnitude more of these things.
How are gag orders like this even allowed in our country? What is the point of a gag order that restricts talking about "The FBI wanted customer records" other than "the government might be up to no good and wishes to cover their tracks as early as possible?"
I would like to see any intelligent person make the argument that the gag order is a necessary part of due process. Revolting.
The basic idea of of the gag order and not being able to reveal the details has pretty sound roots in not tipping off the people being investigated. The issue is they're incredibly broad so companies receiving them can't usually even reveal the exact number received.
I think these secret (or gag) orders should be illegal. Having the ability to subpoena info with the correct court procedures and transparency is fine (and important ability to fight crime with), but these court orders needs to be completely public, and under scrutiny from watch dogs and civil liberties groups. Because power corrupts, and given such absolute power, it will surely corrupt absolutely.
The big defect is allowing long-duration (or even permanent) gag orders, and not just for the NSA-style stuff. There's been quite a few court cases where parties settle on something which is public-interest but the judge seals the whole damn case forever.
> "Not updating a warrant canary" isn't the crime here. "Creating a warrant canary" is the crime, as it's an action whose only purpose is to violate a gag order.
It walks a really fine line IMO. The way I see it is it works in two ways:
* When you create one, you're not referencing a current gag order, but rather an imaginary future one. If creating one is a crime then doing just about anything (deleting an email or throwing away a letter) is also a crime because you can be destroying evidence in a potential future case or investigation not brought yet.
* Once this warrant is issued, then your run into this case where any associated gag order is "one way". That is the government can order you not to disclose the warrant but they cannot compel you to lie and update the canary to reflect that you still have not gotten one yet.
I'm hoping that this will all act as an incitement point to finally open up transparency on the aspects of the court and NSL/FISA warrants in general that don't actually contribute to national security.
I understand and agree completely with the need for secrecy and OPSEC but that's no reason to make these kinds of gag orders essentially permanent. Even the Navy lets their sailors discuss ship movements in/out of homeports once they've occurred.
Likewise it makes sense to keep detailed classifications on what's interceptable secret. But if a portion of the underlying law is Unconstitutional then that needs to be public. Yes, it makes it more difficult to do the job but that's the price we pay for living in a free society.
Seems like the gag orders are "don't tell these suspects that we're monitoring them". Seems quite legitimate and essential in ordinary cases. But we need a robust court system that will restrict gag orders to legit things, rather than suppressing dissent.
This, to me, is the more disturbing part of the article:
> In this case, the federal government prohibited us from sharing any information," the company said in a statement. "Now that this method has become public we are updating our transparency reporting to detail these kinds of requests.
What is the point of transparency reports if they don't include major vectors of government surveillance?
IMO such gag orders shouldn't be legal when applied to dragnet surveillance. If you want to gag a company from notifying an individual they're being surveilled (with a warrant), then fine. But gagging a company from disclosing untargeted or semi-targeted surveillance, especially if it involves American citizens, seems like it should be unconstitutional on free speech grounds.
I'm not a lawyer, but that's a double-edged sword because then the feds would be opening up questions about the constitutionality of the gag order in the first place. These secret national security warrants are still a thing in part because nobody has successfully challenged them in court. It's possible that if the government wants to argue that taking down a warrant canary constitutes violation of the gag order, the court could ultimately rule that the gag order itself is an unconstitutional prior restraint on constitutionally protected free speech.
> 4. National Security Letters need prior judicial review and should never be accompanied by a perpetual gag order.
See also 18 USC 2705(b):
> A governmental entity acting under [18 USC 2703(d)] [...] may apply to a court for an order commanding a provider of electronic communications service or remote computing service to whom a warrant, subpoena, or court order is directed, for such period as the court deems appropriate, not to notify any other person of the existence of the warrant, subpoena, or court order.
Note that 18 USC 2703 and 18 USC 2705 were part of the Electronic Communications Privacy Act of 1986.
I said nothing about the gag order attached to an NSL. They are a violation of First Amendment rights and adhere to basically none of the checks the courts have put on gag orders in the past. The reason this hasn't been rectified is exactly as you point out: their very nature helps eliminate most legal challenges to them.
But that's not what I was talking about. An NSL is an administrative subpoena. It can compel you to turn over metadata about communications, for instance, which is absolutely a Fourth Amendment violation with what you can discern from modern "meta"data, but it can't compel you to turn over the content of those communications, and it certainly can't compel you to, for instance, alter the software on your customer's phone to allow easy intercept of all future communications.
- warrants should have explicit expiration dates...no more indefinite intercepts.
- cooperating companies should be able to publicly say anything as soon as the warrant expires. The gag orders are what have allowed the scope of monitoring to be hidden from public scrutiny and that scrutiny is what's needed to keep surveillance to reasonable levels.
To me, knowing what the process for triggering judicial review of the gag order is like in practice was quite valuable. Apparently the FBI really doesn't want to get the gag orders in front of a judge.
Because that would get the company in trouble even a normal warrant to say nothing of the gag order on an NSL. It's too specific and tips off the exact people being investigated. The lawsuit the company would be hit with would be huge, expensive and a pretty straight forward loss.
I'm fairly confident, in this case, they are using the gag order as a way to hide investigative methods. It's the same reason they try so hard to suppress stingrays being brought into the light. They don't want their opponent to know what they are looking for or how they find them.
NSL's are unconstitutional and should be illegal, sadly nothing is technically illegal if you are the govt.
The govt should not be allowed to operate in secret and issue gag orders, because then there is no recourse and no oversight, which is exactly what happens in practice.
Sadly most people in this country today couldn't care less because fear mongering and appeal to American nationalism work wonders. No one cares about human rights, due process or holding people accountable.
Organizations like EFF, IA, Wikipedia/leaks are the target of state sponsored attacks and media portrays them as evil.
For every time you hear of a case like this, there are thousands probably where the recipients lack the means to fight the order or are simply forced. The fact that the FBI withdrew in order not to set precedent proves they operate illegally, but of course there will be no mainstream coverage or consequences.
This concept strikes me as really weak. It acts under the pretense that a gag order is valid. The whole concept of a gag order needs to be confronted, not skittered away from.
All the government needs to do is give a gag order to the people processing the warrant. The folks putting the transparency report together will truthfully report that no such warrant exists, because they are unaware of it.
This isn't a big spy thing either -- if you've ever worked in a place where one or more executives or a business unit were subject to an investigation of some sort, this happens. The gag orders are there to avoid intentional or accidental disclosure to the custodian of the data in question, which could lead to tampering with or destruction of evidence. Its an uncomfortable situation that many email administrators have found themselves in for many years.
The scary thing about the Section 215 warrants from my perspective as an individual is the difficulty in disclosing things to counsel to get appropriate advice, broad scope and indefinite nature of the gag order. It was one thing when these laws were used to investigate KGB agents -- now you have orders of magnitude more of these things.
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