Freed From Gag Order, Google Reveals It Received Secret FBI Subpoena

Jenna McLaughlin

2016-10-14T19:57:39+00:00

https://theintercept.com/2016/10/14/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 
activities.”

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 
report.

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 
been revealed.

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 
gag orders.

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 
in place.

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.”

Contact the author:


Jenna McLaughlin✉jenna.mclaughlin@​theintercept.comt@JennaMC_Laugh

--
It's better to burn out than fade away.


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