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Search Your Constitution in Vain for the Fourth Amendment—the DOJ Seized It (Stealthily)

by Douglas Ankney

Over the past couple of decades, the Department of Justice (“DOJ”) and its components have been requesting and receiving data from electronic media service providers, utilizing warrants, subpoenas, and National Security Letters (“NSLs”) that come with indefinite gag orders attached. Microsoft, Google, Facebook, et al., are sworn to secrecy by these orders, and notifying targeted customers is verboten. Unlike a traditional search warrant where a person is made aware by the physical presence of law dogs that the government is rummaging through his/her underwear drawer, these warrants, subpoenas, and NSLs allow the government to rummage by stealth.

According to Jay Greene and Drew Harwell of the Washington Post, “Tech company officials said it is often difficult to tell which orders are worth fighting. The orders are often vague— sometimes just email addresses—and the owner of the account isn’t always obvious.”

Microsoft provided two secrecy orders to the Post with the names of the customers redacted. Each is only about four paragraphs long and declares that notifying the customer about the existence of the data request could lead to tampering or flight from prosecution. “Neither order offers any support for those claims, or any details to indicate why secrecy is necessary. Microsoft complied with both orders and notified customers of the seizure only after the orders expired.” (Emphasis added.)

Former Defense Department contractor Ryan Lackey has regularly used Facebook for the past 15 years. Nearly two years after Facebook handed over his data, Facebook notified him of the government’s demand. And Lackey still doesn’t know what the government sought or when. Lackey inquired of Facebook what information was handed over, but Facebook responded that it couldn’t give him “legal advice” and recommended he consult a lawyer.

During the last six months of 2020, almost 70% of the 62,000 government requests received by Facebook came with gag orders attached. Microsoft sees about 2,500 to 3,650 requests with gag orders attached each year. Throw in other media services such as Google and Apple, and the number of government requests easily exceeds 100,000 annually.

These subpoenas, warrants, and NSLs with gag orders are comparable to the police knocking on our door, showing us a general warrant, and saying: “We were here six months ago and searched your home. What we were seeking and what we seized is none of your business.” I recall reading of a group of people who tired of the King’s men acting similarly. Those people banded together, made an agreement, and wrote a document that began “When in the course of human events....” It will be interesting to see if history repeats itself.  


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