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Brooklyn Judge Will Not Force Facebook’s Silence on Subpoenas Brooklyn Judge Will Not Force Facebook’s Silence on Subpoenas
(35 minutes later)
A federal judge in Brooklyn ruled on Thursday that prosecutors could not force Facebook to remain silent about 15 grand-jury subpoenas involving the company’s customers.A federal judge in Brooklyn ruled on Thursday that prosecutors could not force Facebook to remain silent about 15 grand-jury subpoenas involving the company’s customers.
The judge, James Orenstein, said that the prosecutors had legitimate concerns that their investigations might be compromised, but he added that the government’s boilerplate requests, made in identical language in each of the 15 applications for a gag order, were insufficiently detailed.The judge, James Orenstein, said that the prosecutors had legitimate concerns that their investigations might be compromised, but he added that the government’s boilerplate requests, made in identical language in each of the 15 applications for a gag order, were insufficiently detailed.
“Government prosecutors and agents have a difficult job investigating crime, and one that is made more difficult by the fact that some of the investigative techniques they must rely on can backfire by alerting criminals to the fact of the investigation,” Judge Orenstein wrote. But he went on to say that law-enforcement officers cannot “obtain an order that constrains the freedom of service providers to disclose information to their customers without making a particularized showing of need.”“Government prosecutors and agents have a difficult job investigating crime, and one that is made more difficult by the fact that some of the investigative techniques they must rely on can backfire by alerting criminals to the fact of the investigation,” Judge Orenstein wrote. But he went on to say that law-enforcement officers cannot “obtain an order that constrains the freedom of service providers to disclose information to their customers without making a particularized showing of need.”
A handful of cases have emerged in recent months laying bare the tensions between the government’s desire to conduct criminal inquiries, sometimes secretly, and the rights of companies like Facebook to have autonomy over their businesses.A handful of cases have emerged in recent months laying bare the tensions between the government’s desire to conduct criminal inquiries, sometimes secretly, and the rights of companies like Facebook to have autonomy over their businesses.
Last month, Microsoft sued the Justice Department in an attempt to stop federal officials from using the Electronic Communications Privacy Act to keep under wraps their requests for information about Microsoft customers. And the F.B.I. recently engaged in a highly public tussle with Apple after it tried to force the tech company to unlock iPhones linked to criminal investigations.Last month, Microsoft sued the Justice Department in an attempt to stop federal officials from using the Electronic Communications Privacy Act to keep under wraps their requests for information about Microsoft customers. And the F.B.I. recently engaged in a highly public tussle with Apple after it tried to force the tech company to unlock iPhones linked to criminal investigations.
In the case of Facebook, federal prosecutors in Brooklyn sought to cloak the existence of the subpoenas under the Stored Communications Act, which grants courts the power to prohibit tech companies from revealing the receipt of various government orders, like warrants or subpoenas, in order to protect the covert nature of criminal probes.In the case of Facebook, federal prosecutors in Brooklyn sought to cloak the existence of the subpoenas under the Stored Communications Act, which grants courts the power to prohibit tech companies from revealing the receipt of various government orders, like warrants or subpoenas, in order to protect the covert nature of criminal probes.
Judge Orenstein wrote that the prosecutors had submitted 15 separate sealed requests to him, each bearing the title: “Application for order commanding [service provider] not to notify any person of the existence of subpoena.”Judge Orenstein wrote that the prosecutors had submitted 15 separate sealed requests to him, each bearing the title: “Application for order commanding [service provider] not to notify any person of the existence of subpoena.”
The requests, all filed in Brooklyn, asked for permission to bar Facebook from mentioning the subpoenas to anyone except its lawyers out of a fear that the targets of the secret investigations might get wind of them and either flee or tamper with evidence.The requests, all filed in Brooklyn, asked for permission to bar Facebook from mentioning the subpoenas to anyone except its lawyers out of a fear that the targets of the secret investigations might get wind of them and either flee or tamper with evidence.
Judge Orenstein’s ruling did not reveal the information the government wanted from Facebook. It also left open the possibility that he would agree to impose gag orders on Facebook if the prosecutors could convince him with more details.Judge Orenstein’s ruling did not reveal the information the government wanted from Facebook. It also left open the possibility that he would agree to impose gag orders on Facebook if the prosecutors could convince him with more details.
Facebook did not immediately respond to a request for comment on the ruling.Facebook did not immediately respond to a request for comment on the ruling.
But according to the company’s policy on dealing with inquiries from law-enforcement officials about a user, its policy is to inform the user of the request, unless the company is specifically prohibited from doing so.But according to the company’s policy on dealing with inquiries from law-enforcement officials about a user, its policy is to inform the user of the request, unless the company is specifically prohibited from doing so.
The policy states that as Facebook receives requests from the police or other agencies, it vets them to establish their legitimacy and frequently shares only “basic subscriber information.” The policy states that as Facebook receives requests from the police or other agencies, it vets them to establish whether they are within the bounds of the law and how compelling they are. It frequently shares only “basic subscriber information.”