New Justice Department Memo Reins in Records Request Gag Orders

Posted on October 26, 2017

Ars Technica reports: the US Department of Justice issued a memo last week which imposes new limits on gag orders accompanying certain Department records requests. Drafted by Deputy Attorney General Rod Rosenstein, the memo governs 2705(b) gag orders, which prevent companies served with a 2703(d) records request under the Stored Communications Act from disclosing the reception of, or compliance with, such requests to their employees or customers.

The new rules outlined in the memo state that gag orders may not last for longer than a year, except in extraordinary cases, and that any renewal of a 2705(b) order may not extend the nondisclosure clause for a longer period than the initial term of order. Additionally, the memo’s guidelines require that prosecutors seeking to include a gag provision in a Stored Communications Act record request provide “an individualized and meaningful assessment” of its necessity to the presiding judge, and also place the power to lengthen the term of an order or renewal solely in the hands of a judge. 

These reforms, while modest, constitute an encouraging advance in data privacy and consumer protection by allowing companies or services storing their personal data more room to notify their customers of government requests into such data. Although these rules do not cover FBI National Security Letters or their gag clauses, the memo would apply to a wide array of prosecutorial subpoenas, including those targeting data held by services whose primary purpose is to store data (such as cloud storage providers) and data held by any other company or service for longer than 180 days. The stricter requirements on gag order applications combined with shorter terms and more frequent judicial reevaluations promise to give consumers far more timely notice of government requests into their personal data and, by extension, more informed consumer choice on which services to entrust with their data. 

You can read the full story from Ars Technica here