REP LIEU AND SEN WYDEN REQUEST ANSWERS ON DOJ’S USE OF SECRECY ORDERS
WASHINGTON – Today, Congressman Ted W. Lieu (D-Los Angeles County) and Senator Ron Wyden (D-OR) sent a letter to Attorney General Merrick Garland requesting answers on the Department of Justice's use of secrecy orders, which prevent technology companies from informing their customers about government demands for their data. The Members express concern over the threat to Americans' privacy the indefinite secrecy orders present when individuals' personal data is obtained by the government without them ever knowing. The letter accompanies a bill already introduced by the Members that would institute comprehensive transparency reforms related to law enforcement surveillance.
In the letter, the Members write:
Dear Attorney General Garland:
Thank you for your service. We write to seek information about the Department of Justice's ("DOJ") use of secrecy orders, which prevent technology companies from telling their customers about government demands for their data. We are concerned that reforms that DOJ adopted in 2017 have not been sufficient to protect Americans' rights.
Government agencies routinely seek and obtain secrecy orders—also known as non-disclosure or gag orders—to prohibit technology companies from telling their customers that they have been forced to turn over their customers' private data, including emails, location data, and web browsing records. While secrecy during an active investigation may be appropriate, for example, to protect the life or physical safety of an individual or prevent the destruction of or tampering with evidence, surveillance should not be secret indefinitely, which the law currently permits through gag orders with no expiration date.
The government's use of secrecy orders has become routine because many technology companies have, over the past decade, adopted policies in which they will tell their customers about government demands for their data unless prohibited from doing so by a court. In stark contrast, telephone companies, who receive significantly more surveillance demands from the government, do not tell their customers, even when the companies are not prohibited from doing so.
Technology companies took on the burden of telling their customers about government surveillance because the government adopted and the courts permitted an absurd reading of the law, under which the government has no obligation itself to ever tell individuals whose emails, location data, or web browsing records it obtains. As a result, while individuals charged will often eventually learn through discovery that the government sought and obtained their private data, individuals who are not charged will never learn they were surveilled unless they are told by a technology company.
DOJ's wholesale embrace of secrecy does not just impact the privacy of countless Americans, but it threatens the very core of our democracy. In 2021, DOJ revealed that under the Trump Administration, the government secretly targeted journalists and Democratic Members of Congress, their staffs, and their families, obtaining their communications records and then seeking and obtaining court orders preventing companies from telling those impacted users. Reportedly, the demands were an effort to identify the source of leaked information regarding the Administration's contacts with Russian officials. Unfortunately, DOJ's outrageous conduct, which threatened both the separation of powers and the freedom of the press, is not new. DOJ has, for years, engaged in highly problematic surveillance to identify journalists' sources.
In October 2017, after Microsoft filed a lawsuit challenging the constitutionality of DOJ's indefinite secrecy orders, DOJ established new internal guidelines regulating their use. The guidelines, issued by then-Deputy Attorney General Rod J. Rosenstein, require prosecutors applying for secrecy orders to (1) " . . . conduct an individualized and meaningful assessment regarding the need for protection from disclosure prior to seeking an order . . . ," (2) " . . . tailor the application to include the available facts of the specific case and/or concerns attendant to the particular type of investigation . . . ," and (3) " . . . seek to delay notice for one year or less . . . ," among other things.
While these reforms were a good first step, they still did not go far enough. The Department's policies are not binding on federal agencies outside of DOJ, such as the Department of Homeland Security, nor state or local agencies, and there are no meaningful consequences if DOJ components violate them. Moreover, these reforms will not result in the government telling the hundreds of thousands of people whose location data or telephone records it surveils every year. That is why we recently introduced bipartisan legislation, the Government Surveillance Transparency Act, which institutes comprehensive transparency reforms related to law enforcement surveillance. Our bill requires the government to eventually notify individuals about surveillance of their data, reform the use of secrecy orders, and require public reporting on the scale of government surveillance and secrecy orders.
As Congress further examines this issue in the coming months and considers legislative solutions, including our bill, it would be helpful for DOJ to provide us with information about how it has implemented the 2017 guidelines. To that end, please provide us with answers to the following questions by May 19, 2022:
1. What steps has DOJ taken to ensure that prosecutors are complying with the 2017 guidelines on secrecy orders? What measures, if any, does the DOJ currently have in place to curtail the overuse and abuse of secrecy orders?
2. The Wiretap Act requires the government to eventually notify the targets of wiretaps that they were the subject of court-ordered surveillance. What steps does DOJ take to ensure that surveillance targets receive this mandatory notice? In each of the past three years, how many individuals have DOJ provided notice of such surveillance?
3. The Right to Financial Privacy Act requires the government to eventually notify individuals whose bank records were obtained by the government using subpoenas of that fact. What steps does DOJ take to ensure that these surveillance targets receive this mandatory notice? In each of the past three years, how many individuals have DOJ provided notice of such surveillance?
We appreciate your attention to this critical matter and look forward to working with and hearing from you.
Sincerely,
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