National Security

Legislation seeks to block lengthy gag orders on tech firms after government surveillance

The Department of Justice logo is seen at their headquarters in Washington, D.C., on Thursday, August 5, 2021 prior to a press conference regarding a civil rights matter.
Greg Nash

Government agencies would no longer be able to indefinitely conceal their secret seizure of email records under legislation introduced Tuesday that takes aim at gag orders.

The Government Surveillance Transparency Act, sponsored by a bipartisan group of lawmakers from both chambers, puts limitations on gag orders that seek to block tech companies from altering users whose data has been seized. It targets a practice brought into the spotlight after journalists from CNN, The New York Times and The Washington Post all had their records seized by the Department of Justice (DOJ).

The bill requires law enforcement agencies to notify surveillance subjects that their email, location and web browsing data has been seized, aligning with current practices for phone records and bank data.

While the legislation allows the government to continue getting secret warrants to obtain such data, it also places a six-month limit on gag orders that prevent companies from notifying their users of the seizure.

“When the government obtains someone’s emails or other digital information, users have a right to know,” Sen. Ron Wyden (D-Ore.) said in a release. 

“Our bill ensures that no investigation will be compromised, but makes sure the government can’t hide surveillance forever by misusing sealing and gag orders to prevent the American people from understanding the enormous scale of government surveillance, as well as ensuring that the targets eventually learn their personal information has been searched.”

While law enforcement agencies can still pursue gag orders, they must seek court approval by demonstrating a fear of evidence destruction, witness tampering or a serious risk of jeopardizing the investigation.

The Justice Department over the summer ended its quest to continue seeking gag orders at the three outlets — a battle that was in part fought by tech companies whose contracts in some cases require notification when a user’s data is subpoenaed.

The department has since said it will no longer seek gag orders for journalists’ records.

“Going forward, consistent with the president’s direction, this Department of Justice — in a change to its longstanding practice — will not seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs. The Department strongly values a free press, protecting First Amendment values, and is committed to taking all appropriate steps to ensure the independence of journalists,” the DOJ said in June.

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