Analysis | The government can seize your messages in secret. Lawmakers want you to know if it does. (2024)

A bipartisan group of lawmakers is aiming to change that by unveiling legislation Tuesday that would require authorities to eventually notify users that their data is seized, according to a preview shared exclusively with The Technology 202.

Those leading the push say it addresses a major gap in existing law. While authorities must at some point notify individuals when they are targeted by wiretaps or subpoenas for bank information, there is no such mandate for electronic data such as emails, texts or location information.

Not only are disclosures not mandated, but law enforcement agencies at times go through great lengths to keep their surveillance under wraps, including by issuing gag orders that block technology and telecommunications companies from alerting their users that their information has been obtained.

The Government Surveillance Transparency Act would mandate that court-ordered data surveillance be made public after investigations are concluded, unless the government can convince a court that the information should temporarily be sealed.

Under the measure, law enforcement agencies would need to prove that failing to secure a gag order could significantly jeopardize an investigation to get one and, even then, it would only last up to 180 days subject to temporary renewal.

“Our bill ensures that no investigation will be compromised, but makes sure the government can’t hide surveillance forever by misusing sealing and gag orders to prevent the American people from understanding the enormous scale of government surveillance,” Sen. Ron Wyden (D-Ore.), who is leading the bill with Sen. Steve Daines (R-Mont.), said in a statement.

The legislation boasts broad backing, with Democratic and Republican support in the Senate and House, where lawmakers are introducing a companion measure. That is crucial for its chances of advancing on Capitol Hill.

Other backers include Sens. Cory Booker (D-N.J.) and Mike Lee (R-Utah) and Reps. Ted Lieu (D-Calif.) and Warren Davidson (R-Ohio). The proposal has also been endorsed by a slew of privacy and digital rights groups, including Access Now, the Electronic Frontier Foundation, Color of Change and the Brennan Center for Justice.

Scrutiny of these surveillance practices ballooned after it was revealed that, during the Trump administration, the Justice Department secretly subpoenaed email records from numerous journalists, including at The Washington Post, in an attempt to identify their sources of leaked information.

The disclosures ushered in a wave of congressional oversight, including a hearing last June that featured testimony from an executive at Microsoft.

Tom Burt, a vice president at Microsoft, said in his written testimony that while the revelations about the scope of the Justice Department actions were “shocking,” they were not surprising.

“What may be most shocking is just how routine court-mandated secrecy has become when law enforcement targets Americans’ emails, text messages, and other sensitive data stored in the cloud,” Burt wrote.

According to a report last year by my colleagues Drew Harwell and Jay Greene, “Facebook, Google and other technology companies receive hundreds of thousands of orders from law enforcement agencies seeking data people stash online.”

They wrote at the time that, “In the last six months of 2020, Facebook received 61,262 government requests for user data in the United States, said spokesman Andy Stone. Most, 69 percent, came with secrecy orders. Meanwhile, Microsoft has received between 2,400 and 3,500 secrecy orders from federal law enforcement each year since 2016.”

Since the Justice Department revelations, technology companies have grown increasingly vocal in speaking out against surveillance on their services and gag orders against their customers.

At least two technology companies, search engine operator DuckDuckGo and cloud software giant Salesforce, are endorsing the new measure, according to Wyden. Expect more to rally behind legislative efforts to boost transparency around data surveillance and gag orders.

The agency and 14 states told a judge that the company’s “deliberate and deceptive misuse” of legal privilege “directly harmed Plaintiffs, undermined their discovery efforts, and subverted the judicial process” in a major antitrust lawsuit, according to a court filing.

Lawyers for the Justice Department argued that it saw Google employees “routinely adding in-house counsel to business communications, affixing privilege labels, and including pretextual requests for legal advice when no advice was actually needed, sought, or thereafter received,” according to the filing. “In these email chains, the attorney frequently remains silent, underscoring that these communications are not genuine requests for legal advice but rather an effort to hide potential evidence.” The Justice Department wants the judge to force Google to hand over the emails.

Google responded by saying it has tried to comply with demands for documents. “Our teams have conscientiously worked for years to respond to inquiries and litigation, and suggestions to the contrary are flatly wrong,” Google spokesperson Peter Schottenfels said. “Just like other American companies, we educate our employees about legal privilege and when to seek legal advice. And we have produced over 4 million documents to the DOJ in this case alone — including many that employees had considered potentially privileged.”

Washington D.C. Attorney General Karl A. Racine’s (D) arguments mostly center on claims that Grubhub engaged in false advertising, TechCrunch’s Amanda Silberling reports. Here’s more on the allegations from Racine:

The company told TechCrunch that it’s disappointed in the lawsuit “because our practices have always complied with D.C. law, and in any event, many of the practices at issue have been discontinued. We will aggressively defend our business in court and look forward to continuing to serve D.C. restaurants and diners.” The company also told the outlet that it’s making changes in the wake of the lawsuit, including new disclosures and more detail about the real costs that customers end up shouldering.

A Moscow court fulfilled prosecutors’ request to outlaw Facebook parent Meta and ban Facebook and Instagram over what they called “extremist activities,” the Associated Press reports. The ban prohibits Meta from doing business in Russia.

“Prosecutors haven’t requested to ban the Meta-owned messaging service WhatsApp, which is widely popular in Russia,” the AP writes. “The authorities also emphasized that they do not intend to punish individual Russians who use Facebook or Instagram.”

Meta declined to comment to the AP.

Russian authorities have already blocked Facebook and Instagram. In blocking Facebook, they cited discrimination against Russian state media outlets. In their ban of Instagram, they cited a decision by Meta to allow calls for violence against Russians. Meta said it was making an exception to its incitement policies by allowing political posts against Russian forces invading Ukraine. However, the company said calls for violence against ordinary Russian citizens would still be prohibited.

Apple resolved an outage that took down many of its services, the Verge's Jay Peters reports. GV general partner M.G. Siegler and journalist Casey Newton:

Writer Caitie Delaney:

Bloomberg's Mark Gurman:

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