Opinion

Alison Frankel

D.C. judge wants DOJ to justify ‘gag orders’ on Twitter, Yahoo

By Alison Frankel
April 1, 2014

For the last two weeks, U.S. Magistrate Judge John Facciola of Washington, D.C., has been on a one-man campaign to hold the government accountable for secret subpoenas to Internet companies.

On March 24, Facciola issued unusual orders in two cases, one involving Twitter and the other Yahoo. The Justice Department had applied for court orders under the Electronic Communication Privacy Act to bar Twitter and Yahoo from disclosing that they had received grand jury subpoenas for customer information. Those non-disclosure applications are routine, but Facciola decided he wasn’t going to grant the government’s requests unless Twitter and Yahoo had an opportunity to be heard. He ordered the government to file a redacted version of its applications on the public docket and asked Twitter and Yahoo to inform him whether they intended to file briefs in response.

The government immediately went over Facciola’s head, appealing his orders to Chief Judge Richard Roberts of Washington federal district court. Facciola’s response? He refused to grant a Justice Department non-disclosure application in a third case, also involving a grand jury subpoena for Twitter records. And this time, the magistrate wrote a detailed, citation-filled opinion explaining why he believes Twitter has a constitutional right under the First and Fifth Amendments to be heard before he can issue what he called a “gag order.” Facciola once again instructed the Justice Department to file a public version of its non-disclosure application and invited Twitter to brief him on its view of its free speech rights.

As a practical matter, Facciola’s orders won’t take effect any time soon. After the Justice Department appealed his rulings from last week, Chief Judge Roberts ordered Twitter and Yahoo not to make any public filings in the non-disclosure cases. He also granted the government’s request to seal its appeal. (Apparently unbowed, Facciola quoted from the government’s sealed appeal brief in the opinion he issued Monday.)

But even though Facciola’s rulings won’t have an immediate impact on the Justice Department, you should read Monday’s opinion if you care about Internet privacy and civil rights. This judge clearly does, and he’s not the first federal magistrate to express serious reservations about reflexively approving government applications for non-disclosure orders. As Facciola notes in Monday’s Twitter opinion, in 2011, U.S. Magistrate Judge Ralph Zarefsky of Los Angeles concluded after intense textual analysis that the Electronic Communications Privacy Act is in tension with the Federal Rules of Criminal Procedure when it comes to non-disclosure of a grand jury subpoena.

Zarefsky refused to grant the Justice Department’s application to silence an unidentified computer service and wrote a rare opinion on the issue to explain why. Then in March 2013, U.S. Magistrate Judge Deborah Robinson of Washington ordered the Justice Department to brief its application for a disclosure prohibition against Twitter in light of Zarefsky’s 2011 decision. The government didn’t file the brief and Robinson never granted the application, according to Facciola. (The docket in the case before Robinson is sealed.)

In Monday’s opinion in the most recent Twitter case, Facciola said he agreed with Zarefsky, but he layered constitutional concerns on top of the California magistrate’s holding that the government has no statutory right to prohibit disclosure of grand jury subpoenas. The Washington judge said that an order not to reveal the subpoena amounts to a prior restraint on Twitter’s right to free speech.

Twitter, he said, therefore has a due process right under the Fifth Amendment to defend its First Amendment prerogatives. “The court cannot issue an order that would violate the Constitution by violating Twitter’s due process rights,” Facciola wrote. “Thus, until Twitter has an opportunity to be heard, this court will not issue a final order in this matter.” (The magistrate pointed out that there’s no harm to the government in waiting until Twitter has had a chance to respond, since he ordered Twitter not to divulge anything about the subpoena until he’s reached a final decision.)

Facciola also defended his orders that the government file public versions of its non-disclosure applications. He said he’s only asking the Justice Department to reveal its legal arguments, not any facts about the specific grand jury subpoenas it wants to keep secret. The public, he said, has an interest in knowing how the government justifies silencing someone who’s outside of any judicial proceeding. “All this court is doing is making the government disclose its intention to silence Twitter,” he wrote. “The real question is whether it is appropriate to keep secret the fact that the government seeks to impose upon Twitter a prior restraint on its speech. That information should be included on the public docket.”

As of late Tuesday afternoon, the government had not appealed Facciola’s latest order. I reached out to the Justice Department’s public affairs office, which declined to comment. I also asked a representative from Justice’s National Security Division how frequently the government seeks non-disclosure orders against Internet companies but didn’t immediately hear back. A Twitter spokesperson declined to comment, and Yahoo did not respond to requests for comment.

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