The American Civil Liberties Union (ACLU) has shared a subpoena and gag order that earlier this year were served to Open Whisper Systems, the company behind the encrypted-communications app Signal, as well as the encryption technology built into Facebook Messenger, Google Allo and WhatsApp.
The documents, and the U.S. government's more recent agreement to allow the documents to be shared, suggest a concerning change in government practice, says the ACLU.
"This case shows that the government is hiding its requests for Americans' records using extreme secrecy even where it is plainly unwarranted," Brett Max Kaufman, a staff attorney with the ACLU, said in an Oct. 4 statement.
"The First Amendment protects companies like Signal that want to communicate basic information about government requests for customer data," Kaufman continued. "The government should not be seeking all-encompassing gag orders by default."
The gag order—or court order—issued by a U.S. District Court for the Eastern District of Virginia, states that OWS cannot notify its subscribers or customers about the request until further notice from the court, and that it can't acknowledge the existence of the subpoena or court order to anyone but a lawyer for one year.
A magistrate judge signed the order, explaining that any acknowledgment of it could "seriously jeopardize" an investigation and give the involved parties an opportunity to flee or destroy or tamper with evidence.
OWS provided what it could—which wasn't much, Kaufman noted in a blog post the same day, explaining that "the company simply does not keep the kinds of information about their customers that the government sought (and that too many technology companies continue to amass)."
Still, believing total secrecy wasn't warranted, OWS contacted the ACLU, which says it then contacted the government asking it to reverse its demand for secrecy. The fact that the government rather easily complied, Kaufman explained in the post, suggests such secrecy wasn't necessary and that "secrecy—and not transparency—has become a governmental default when it comes to demands for our electronic information."
He continued, "While this—the only one ever received by OWS—is now public, there are many more like it, hiding in the filing cabinets in the U.S. attorney's offices across the country."
Kaufman told eWEEK that technology companies have a duty to stand up to the government on their customers' behalf.
"Companies that receive subpoenas or other legal process for customer data should not be intimidated, should seek the advice of counsel and should ensure that the government's demands are lawful," Kaufman said via email.
"Unfortunately, as this case shows," he continued, "the government sometimes asks for information to which it is not entitled, and companies have a duty to their customers to respond with their users' privacy interests in mind."
Jan Dawson, chief analyst with Jackdaw Research, says it's becoming increasingly clear that the U.S. government is doing plenty of things that consumers would be unhappy to learn about.
"It's certainly the case that consumers can't know for certain what companies will do with their data, as long as the government can secretly demand that data in ways that the companies object to without any recourse to public opinion," Dawson told eWEEK.
"Arguably, this makes it all the more important to trust communications and other sensitive data to companies that tend not to store it for very long," Dawson added, "such that there's little there to be accessed should governments attempt to tap into it."
Garrett Bekker, a senior analyst in the Enterprise Security Practice at 451 Research, said the feud earlier this year between Apple and the FBI highlighted a problem that we can expect will keep returning.
"Most global/multinational tech companies are really in a lose/lose situation. On one hand, they can comply with government requests to access data and risk alienating their customers, particularly non-U.S. customers who are highly untrusting of the U.S. post-Snowden, or they can alienate the government and its agencies," Bekker told eWEEK. "Public opinion on the Apple case was pretty evenly divided, so for global tech firms, there is no middle ground."
Sean Doherty, also an analyst at 451 Research, in its governance, compliance and e-discovery department, added, "It is my position that gag orders on technology and communication providers for customer information defeat the constitutional rights of customers to oppose the subpoena. And the secret assertion of subpoenas has no 'later' argument for transparency. In effect, delayed justice is no justice."