As our lives continue to become more digitized, laws governing government access to personal information need to evolve to protect both public safety and civil liberties.
America’s Stored Communications Act, passed in 1986 (before the internet became a part of daily life), sets the rules governing government demands to providers to disclose information about their users. One of those rules lets the government seek orders to prevent providers like Google from telling users about demands for data. These so-called Non-Disclosure Orders (NDOs) or “gag orders” have become commonplace.
We’re seeing NDOs issued for an increasing number of court orders, warrants, and subpoenas from U.S. authorities. That means that providers can’t notify users until long after compliance, if ever. And that people don’t have the opportunity to go to court to contest disclosure orders.
We’ve seen NDOs issued in cases where the user is already aware of the investigation, and even of the legal demand itself. Similarly, we’ve seen NDOs issued covering legal requests for the data of well-established reputable organizations, even though notifying the organization is highly unlikely to do harm. And we’ve seen some NDOs that might have been initially justified lasting years beyond the investigation, in some cases indefinitely.
It’s time to reform this practice, requiring more robust review before gag orders are issued.
We commend the bipartisan House passage of the NDO Fairness Act, a bill sponsored by Chairman Nadler and Representative Fitzgerald that would make much-needed improvements to the Stored Communications Act. This reform will ensure that gag orders are issued only where warranted and for reasonable periods.
This position is nothing new for us. We’ve long advocated for transparency for both our users and the public. We were the first major company to publish a Transparency Report on government requests for user data and co-founded both the Global Network Initiative and the Reform Government Surveillance coalition. We’ve long supported surveillance reform, including the Email Privacy Act, and legislation to allow providers to be more open about national security requests. We also contest inappropriate gag orders, going to court where necessary (with one case leading the U.S. Department of Justice to pledge to stop using court orders to get journalists’ information in leak investigations). We've also built industry-leading products to give business customers transparency and control over who has access to their data.
Transparency for government data demands is an important check-and-balance, and we urge both the House and Senate to advance this practical protection for Americans in the digital age.