Secret gag orders imposed by the US government on tech companies must stop, as they abuse citizens' fundamental freedoms and are no longer even used sparingly

Brad Smith is the president of Microsoft. — The past seven days marked another bad week for the collision between technology and democracy.

Washington Post 2021-06-14 Brad Smith

Context & Ripple Effects

Microsoft’s position is part of a long-running fight over when the government may prevent companies from disclosing demands for user information. In 2016, the company argued that secrecy should be exceptional and pressed the DOJ or Congress for tighter rules; a year later, an appeals court upheld gag orders tied to national-security letters despite challenges from Microsoft, Twitter and others.

Brad Smith’s intervention renews that argument as a democracy-and-rights issue, rather than treating disclosure restrictions as a narrow compliance dispute. It also follows Microsoft’s earlier push for limits that make secrecy the exception after the court upheld national-security-letter gag orders.

First-order effects

Microsoft publicly raises the reputational and political cost for the US government of using gag orders broadly, while making its own stance on compelled secrecy clearer to customers and citizens.
The argument gives other technology companies that have contested these orders a rights-based rationale for continued legal and policy challenges.

Second-order effects

DOJ and Congress face renewed pressure to define narrower, reviewable circumstances for nondisclosure orders, the reform path Microsoft previously advocated.
Companies receiving government demands gain an incentive to coordinate around disclosure standards, since one firm’s ability to challenge secrecy affects the sector’s collective transparency posture.

Third-order effects

If secrecy rules become more limited and contestable, government-access requests would increasingly be governed as a public trust and market-access issue, not only as a confidential law-enforcement process.
The dispute points toward a technology sector in which firms differentiate their governance practices by how openly they can account for state requests affecting users.

The trend: Government data-access disputes are shifting from isolated court fights toward a broader contest over whether technology companies can treat transparency as a core condition of user trust.

Discussion

@howelloneill Patrick Howell O'Neill on x
Microsoft president Brad Smith calls for the end of secret gag orders “that the Trump Justice Department exploited ... as part of a secret effort to obtain emails in investigations of the media and Congress.” https://www.washingtonpost.com/ ...
@washingtonpost @washingtonpost on x
Opinion: “Democracy rests on a fundamental principle of government transparency. Secrecy should be the rare exception — not the rule.” https://www.washingtonpost.com/ ...
@bradsmi Brad Smith on x
Gag orders to investigate the media and Congress must stop. Our democracy rests on a fundamental principle of government transparency. Secrecy should be the rare exception — not the rule. https://nam06.safelinks.protection.outl ook.com/ ...
@davidshepardson @davidshepardson on x
Microsoft weighs in on @TheJusticeDept gag orders: “Congress should prohibit the executive branch from conducting its investigations wholly in secret absent a strong showing of necessity supported by compelling evidence” https://twitter.com/...
@balbonipaolo Paolo Balboni on x
.@BradSmi President of @Microsoft: “European leaders worry that a U.S. government that secretly goes to court to demand data from tech companies about its own reputable citizens will do the same thing to them as well.” https://www.washingtonpost.com/ ...
@sangernyt David Sanger on x
Must-read piece on the gag orders, the most pernicious element of the search for reporters' records. There is a legitimate argument over the extent to which 1st Amend. should protect sources and newsgathering. But the gag orders assure those arguments never play out in court. htt…
@1br0wn @1br0wn on x
Microsoft President @BradSmi is right: “The United States cannot build a stronger alliance of the world's democracies without clear international rules to protect the privacy of each other's data.” https://www.washingtonpost.com/ ...
@nycsouthpaw Southpaw on x
This news about the subpoenas of lawmakers' metadata swims into the end matter of the NYT McGahn story, but it's totally unattributed. https://www.nytimes.com/... https://twitter.com/...
@carnage4life Dare Obasanjo on x
One of the privacy issues playing out in tech is that European governments no longer trust American companies to keep user data private from the U.S. government. The revelations of how much was disclosed under Trump will only strengthen EU resolve here. https://www.nytimes.com/..…
@normeisen Norm Eisen on x
As I told @ChrisCuomo @cnn this week when the congressional surveillance details were revealed, I was sure there was more to come Well here's the latest, & it's a doozy. One more prediction: We ain't done with the shocking Trump era revelations yet. Not even close. https://twitte…
@frankfigliuzzi1 Frank Figliuzzi on x
Did Trump have his own counsel investigated? https://www.nytimes.com/...
@harleyrouda Harley Rouda on x
The Trump DOJ was sifting through the emails and phone calls of Democratic politicians while refusing our legitimate oversight requests. Want government to work better? Congress needs to be able to conduct real oversight. https://www.cnn.com/...
@senschumer Chuck Schumer on x
A gross abuse of power. An assault on the separation of powers. Barr, Sessions, and other officials involved must testify before the Senate Judiciary Committee under oath. If they refuse—they are subject to being subpoenaed and compelled to testify. https://www.nytimes.com/...
@matthew_d_green Matthew Green on x
This is where we're at. The responsibility for fighting surveillance abuse falls to tech companies, because nobody even pretends that the Federal government and courts are functional moral actors. https://twitter.com/...
@seanzadig Sean Zadig on x
After seeing a lot of incorrect chatter on Ye Olde Bird Site about legal process and tech companies in the wake of the Schiff / McGahn news, I wanted to correct a few misassumptions. Let's go on a journey into the exciting world of the Electronic Communications Privacy Act! (1/X)
@matthew_d_green Matthew Green on x
Reporters: when Apple says it hands over “metadata”, ask them what the hell that means.
@matthew_d_green Matthew Green on x
Anyway I just want to say: I'm mad at Apple over this. But I'm also mad at the fact that I have to be mad at Apple. The people who brought us U2: Songs of Innocence shouldn't be the only thing standing between us and unfettered surveillance.
@nytmike Michael S. Schmidt on x
NEW: DOJ secretly subpoenaed Apple for personal info of Trump's then WH counsel Don McGahn and his wife in Feb '18. DOJ barred Apple from telling them at time but 3 years later in May '21 Apple told them. It's unclear what investigation it was related to. https://www.nytimes.com/…
@matthew_d_green Matthew Green on x
Every time you start an iMessage conversation with someone, Apple logs the phone number. That's “metadata”. Did Apple turn that metadata over in this case?
@matthew_d_green Matthew Green on x
“Well, we only handed over metadata, not content.” You handed over a list that could contain every phone number House Intelligence Committee members ever spoke to or texted with, and you think that makes it ok?
@seanzadig Sean Zadig on x
Tech really wants to protect the privacy of its users, and fights against improper, burdensome, or overbroad requests. But sometimes, it requires an overworked, eagle-eyed paralegal to spot something fishy for these cases to surface. (29/X)
@teroterotero Tero Kuittinen on x
@nytmike What does that Apple notification look like? “Hi - all texts of you and your wife were clandestinely delivered to Department of Justice three years ago. Sorry! 😿🙀😈🌝 💕”
@seanzadig Sean Zadig on x
Insisting that Apple “should have known” before it turned over data in these recent cases is a lot easier to say in theory than it is to implement in practice. (31/X)
@matthew_d_green Matthew Green on x
A subpoena from a grand jury *when sent to a Telco* will get you subscriber information and text messaging/call metadata. However when sent to a tech company it will not get you this info. Instead you get subscriber ID and recent IP addresses. 2/
@iamconfused9 @iamconfused9 on x
Say what? Companies like Apple challenge such requests, but in this case a grand jury and federal judge forced Apple to comply and keep it quiet. Apple says it didn't know Trump's DOJ was asking for Democrats' data when it complied with subpoena https://www.cnbc.com/...
@zackwhittaker Zack Whittaker on x
Apple statement re: Trump DOJ demanding metadata for House Intel members. Apple said the grand jury subpoena had a gag order & gave “no information” about the nature of the investigation & would've been “virtually impossible” to know without digging through users' accounts. https…
@repadamschiff Adam Schiff on x
We need a full accounting of the Trump DOJ's abuse of power targeting Congress and the press. An IG investigation is just the start. The full range of the misconduct must be examined, including Barr's efforts to protect those who lied to cover up, and go after Trump's enemies.
@jacknicas Jack Nicas on x
Apple did not realize that data on two Democratic lawmakers was part of a request by the Trump Justice Department. It was handled by a paralegal like a routine request. https://www.nytimes.com/...
@alexlindsay @alexlindsay on x
@philiped Apple has never protected the cloud or metadata... they have always protected access to the phone itself. I'm constantly amazed that people can't get their heads around that. There's no contraction here... just click bait.
@matthew_d_green Matthew Green on x
Also, I understand the legal situation. But imagine being a lawyer and knowing that the White House is spying on the House Intelligence Committee, but being duty bound to keep that secret for three years.

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