Federal Gag Orders Likely to Change
There is often a tension between the needs of law enforcement and the companies that collect and store the electronic data of individuals. Law enforcement may seek this data from the companies through subpoenas, search warrants, and other court orders as part of its investigation and request that the companies did not disclose their interaction with authorities to maintain the confidentiality of the investigation. In contrast, companies may wish, or be obligated under the terms of their agreements or privacy policies, to disclose to their customers that they have produced the customers’ electronic data to law enforcement pursuant to legal process. To prevent the companies from doing so, federal law enforcement typically obtains a non-disclosure order pursuant to 18 U.S.C. § 2705(b) from a federal magistrate court. These orders have generally not had a definite expiration date. However, companies have recently begun to challenge the limits and scope of such orders. The recent case of Microsoft Corp. v. United States Dep’t of Justice, No. C16-0538 JLR, represents the most serious challenge to date.