IF THE FBI wants to flip through your calendar, you’ll usually find out about it when law enforcement shows up at the door with a warrant — unless, that is, you keep your calendar not in your home but in the cloud. This accident of technology needs attention.
This ought to be unacceptable — and not because gag orders are never justified. Indeed, there are times when secrecy is necessary, for example to prevent destruction of evidence or to protect someone from harm. Yet, this secrecy is the exception when it comes to so-called sneak and peek or black-bag jobs in the physical world, where law enforcement is required to justify the need for secrecy before conducting a covert search or seizure. There’s no meaningful difference between pen-and-paper documents stuffed in a drawer and typed-up notes uploaded to a server. There shouldn’t be any difference, either, in the steps officials must take to access the two — or in a citizen’s right to notice that their personal information is in government hands.
Microsoft, Google, Apple and the like generally want to inform affected users after the companies fulfill their legal obligation to comply with subpoenas. Sometimes, these firms take it upon themselves to fight subpoenas that seem overly invasive or otherwise suspect. Yet, thanks to their own privacy policies, the companies don’t always know the identity of the consumer whose data they’re handing over, which prevents them from standing up against, say, the abuse of executive power for political gain. And besides, citizens shouldn’t have to count on business behemoths to play guardian against unconstitutional encroachment.
Attorney General Merrick Garland has the hefty task of restoring his agency’s tattered reputation after four years of malfeasance. This is one of many wrongs he must right. The Justice Department should limit itself to seeking gag orders only under a narrow set of conditions. Better yet, Congress should step in to ensure these limits outlast any one executive: instructing judges and magistrates to permit secret surveillance using a gag order against a third party storing personal information only under the same stringent circumstances that permit secret surveillance generally. The practice of exploiting new technologies to conduct an end run around due process has hardly been confined to a single administration, yet the previous White House has shown how insidious this erosion of civil liberties can be.