Freed From Gag Order, Google Reveals It Received Secret FBI Subpoena
Google revealed Wednesday it had been released from an FBI gag order that came
with a secret demand for its customers’ personal information.
The FBI secret subpoena, known as a national security letter, does not require
a court approval. Investigators simply need to clear a low internal bar
demonstrating that the information is “relevant to an authorized investigation
to protect against international terrorism or clandestine intelligence
The national security letter issued to Google was mentioned without fanfare in
Google’s latest bi-annual transparency report, which includes information on
government requests for data the company received from around the world in the
first half of 2016.
Google received the secret subpoena in first half of 2015, according to the
An accompanying blog post titled “Building on Surveillance Reform,” also
identified new countries that made requests — Algeria, Belarus, and Saudi
Arabia among them — and reveals that Google saw an increase in requests made
under the Foreign Intelligence Surveillance Act.
Though the Department of Justice and FBI are required by law, following the
passage of the USA Freedom Act, to “periodically review” national security
letters to determine if a gag order is still necessary — lifting it either once
an investigation has concluded or three years after it’s been put in place —
only a handful of the hundreds of thousands of letters issued each year have
That Google can now speak freely about the 2015 national security letter is a
result of those changes.
Government watchdogs have criticized the FBI for abusing national security
letters multiple times over the years — for restricting First Amendment
protected speech, failing to provide enough evidence to make the requests, and
targeting a massive number of Americans without notifying them or giving them
the chance for redress. The provisions in the Freedom Act were meant to address
some concerns — including what many have argued are unconstitutionally lengthy
But Google in its short blog post did not publish the contents of the actual
letter the way other companies, including Yahoo, have done in recent months.
Asked about plans to release the national security letter, a Google
spokesperson told The Intercept it will release it, though it wouldn’t say when
or in what form it will do so. Google hasn’t previously published any national
security letters, though it’s possible gag orders for prior demands are still
It’s also unclear why Google wouldn’t immediately publish the document — unless
the gag is only partially lifted, or the company is involved in ongoing
litigation to challenge the order, neither of which were cited as reasons for
holding it back
“I think the question is really a great and important one for Google,” Brett
Max Kaufman, a national security staff attorney for the American Civil
Liberties Union wrote in an email to The Intercept. Kaufman recently worked
with Open Whisper Systems, the creators of end-to-end encrypted messaging
application Signal, to successfully challenge a gag order on a criminal
subpoena — though the company had almost no information to turn over, based on
the way the application is designed.
“If the gag is really gone in its entirety — maybe it’s not — it’s hard to
imagine why they couldn’t publish a redacted version of it that would still
protect the target’s privacy,” Kaufman continued. “From here it seems like a
policy choice not to release it, and a strange one at that.”
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