 Federal agencies are firing off subpoenas – not probable cause warrants issued by a judge – to obtain Americans’ private records without judicial approval. These agencies then pressure companies to keep those demands secret, even when the government lacks legal authority to impose such a gag order. Sen. Ron Wyden (D-OR) and Rep. Pramila Jayapal (D-WA) are now asking the Government Accountability Office and the federal judiciary to address what they call this “pervasive, decades-long abuse of authority.” In a letter to Chief Justice John Roberts and Acting Comptroller General Orice Brown, the lawmakers explain that subpoenas – unlike warrants – generally require no prior judicial approval. Companies receiving them retain a First Amendment right to notify customers, enabling the targets to assert their right to disclosure or challenge the demands in court. But companies in highly regulated sectors like telecommunications have strong incentives to accede to government demands. When secrecy is genuinely necessary, the government can ask a judge for a time-limited nondisclosure order. Instead, federal agencies routinely insert “deceptive boilerplate language” into subpoenas, directing recipients to remain silent and implying legal consequences for disclosure. Sen. Wyden and Rep. Jayapal write: “While these secrecy demands carry no force of law, their coercive effect is extremely successful. This leaves customers entirely in the dark about government incursions into their personal data.” The Guardian reports that Homeland Security Investigations used customs-related administrative summonses to obtain six months of a journalist’s telephone records. It also sought information about the YouTube accounts of journalists Georgia Fort and Don Lemon – after a judge twice rejected a search warrant application. The agency has also reportedly obtained financial information concerning labor unions and a nonprofit organization. The lawmakers warn that this unit of the Department of Homeland Security has used customs authority “to surveil, intimidate, and suppress the free speech of ordinary citizens and even the free press.” Similar secrecy language has long appeared in subpoenas issued by the Drug Enforcement Administration and Justice Department. They write: “The executive branch should not be permitted to achieve through administrative bullying what it cannot justify to a federal judge.” Wyden and Jayapal request a GAO audit and urge the Judicial Conference, the chief policymaking institution for the U.S. federal court system, to add a conspicuous notice to standard grand jury and trial subpoenas explaining that recipients need not remain silent absent a court order or specific statute. PPSA strongly supports this investigation and an explicit notice provision. Government demands for private information should not be wrapped in phony gag orders designed to prevent scrutiny and discourage legal challenges through implied legal threats. Comments are closed.
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