A gag order can be reasonable: "give us what you have on user John Smith birthday 1/1/1950 but don't tell him anything" makes sense if you're, say, investigating a criminal ring John is part of.
What is unreasonable is that companies can't reveal they've been gagged, or what type of data they were compelled to reveal, even after the fact. Companies should be allowed to say "we have disclosed access logs, location history, searches, encrypted backups for 1-50 accounts in response to lawful request from law enforcement." And they should be able to disclose the letter after an investigation has closed (whether it resulted in legal action against the individual or not).
Yes, a gag order can be reasonable. Wiretaps with warrants usually have them. IMO, there should be no gag order, and the subject of the subpoena should be required to be notified and allowed to challenge the subpoena if it is issued without a judge.
Gag orders should be allowed, but only if signed off on by a judge, and only for a reasonable amount of time to complete an investigation. If the government gets your information, and decides not to bring charges, you should have the right to know about that at some point.
> If the government gets your information, and decides not to bring charges, you should have the right to know about that at some point.
Disagree. There are numerous cases where it takes multiple investigations to "get" a career criminal (think organized crime). If each batch of subpoenas or sealed warrants were exposed even when there is no charge this time, that gives said suspect a very nice opportunity to clean up loose ends.
TLDR: If people know they are being actively looked at they will attempt to destroy/suppress/hide evidence.
> Disagree. There are numerous cases where it takes multiple investigations to "get" a career criminal (think organized crime). If each batch of subpoenas or sealed warrants were exposed even when there is no charge this time, that gives said suspect a very nice opportunity to clean up loose ends.
Subpoenas are only supposed to be issued if there's a reasonable belief that the subpoena will find evidence of criminal activity. In theory, subpoenas should find evidence most of the time--if subpoenas frequently don't turn up evidence, then subpoenas are being issued without the proper burden of proof being met.
For this reason I strongly disagree that we should build any policy around the idea that subpoenas won't turn up evidence of wrongdoing on a regular basis. This just encourages law enforcement to go on fishing expeditions, instead of doing proper, evidence-based police work. If law enforcement know the person will be notified of the subpoena after some time, then they'll be incentivized to only apply for subpoenas that are sensible and strategic, rather than applying for frivolous subpoenas that don't turn up anything.
I see your point. It opens a door for a lot of bullshit.
Really, I suppose I am advocating less for secret subpoenas and more for secret warrants. If someone really has a reason to keep something concealed in the interest in justice, then they should have no problem with a Judge signing off on it, under seal of course.
And if the secret warrant is a part of a series against a suspect, again I think a reasonable Judge could be convinced of the necessity of keeping the ongoing investigative activities concealed for the time being.
And then the obvious next conclusion is you can argue with a judge on whether or not that's reasonable.
We already have laws on the books to deal with organized crime - why would we give up our rights so that something we have no evidence for might happen?
What is unreasonable is that companies can't reveal they've been gagged, or what type of data they were compelled to reveal, even after the fact. Companies should be allowed to say "we have disclosed access logs, location history, searches, encrypted backups for 1-50 accounts in response to lawful request from law enforcement." And they should be able to disclose the letter after an investigation has closed (whether it resulted in legal action against the individual or not).