DOJ's Gag Order Request On Reason Was As Ridiculous As You'd Expect

A few weeks back we discussed a few times the ridiculousness of Assistant US Attorny Niketh Velamoor seeking, and then getting, a gag order preventing Reason.com's staff from revealing the existence of a subpoena for identifying information on a few of its commenters who had made hyperbolic internet comments about a US judge. We noted that the gag order itself did not give a reason, other than repeating the possibility of any or all of the officially allowed reasons for a gag order, but never specifying which ones applied. We also noted that Velamoor's initial application for the gag order had not been unsealed in the case -- and we filed a FOIA request with the Justice Department for it (along with the DOJ's guidelines on seeking a gag order). We still have not received a response on either FOIA request.

However, Public Citizen's Paul Levy went with the more direct route of reaching out to Velamoor directly and requesting the application for the gag order -- and after some initial pushback and evasions Velamoor eventually asked the court to unseal the document (as Levy notes, Velamoor perhaps used the time in between to learn what the law says and to research Public Citizen's long history of suing to get documents unsealed). And thus, Levy has now published the application and written up an analysis. You can see the application here, where it shows that, as in the rubber stamp approval of the gag order, Velamoor simply listed out the categories of reasons why a gag order can be issued and then basically said that the commenters might "flee" or "tamper" with certain data.

When the Government seeks such information via grand jury subpoena, 18 U.S.C. § 2705(b) authorizes the Court to issue

an order commanding a provider of electronic communications service or remote computing service to whom a warrant, subpoena, or court order is directed, for such period as the court deems appropriate, not to notify any other person of the existence of the warrant, subpoena, or court order. The court shall enter such an order if it determines that there is reason to believe that notification of the existence of the warrant, subpoena, or court order will result in--

(1) endangering the life or physical safety of an individual;
(2) flight from prosecution;
(3) destruction of or tampering with evidence;
(4) intimidation of potential witnesses; or
(5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.

In this case, such an order would be appropriate because the attached subpoena relates to an ongoing criminal investigation that is neither public nor otherwise known to all targets of the investigation, the account holder is suspected of being involved in or associated with persons involved in the conduct under investigation, and disclosure of the subpoena to the account owner or to any other person may alert subjects or targets of the ongoing investigation. Accordingly, there is reason to believe that notification of the existence of the attached subpoena will seriously jeopardize the investigation, including by giving targets an opportunity to flee or avoid prosecution, or tamper with evidence, including electronically stored information that is easily tampered with. Given the amount of time a criminal investigation commonly lasts and the particular circumstances presented here, the Government respectfully submits that 180 days is an appropriate delay of notice period for the Court to order.

Neither of these arguments make much sense, nor should they result in a gag order. Again, the comments in question were all pretty clearly hyperbolic internet statements and not real threats in any way. The idea that someone would "flee" over that is pretty much laughable. Second, the data was on Reason's servers, which the commenters would not have access to in order to "tamper" with such evidence. One could argue that it's possible they could tamper with local files, browsing history and the like, but it's difficult to see what good that would do and would just open the individuals up to further charges. Plenty of legal cases involve issuing subpoenas or notices not to tamper with evidence. There is no reason that couldn't have been done in this case without a First Amendment-stifling gag order.

As Levy notes, if this is the appropriate level of disclosure required to get a gag order in New York, then basically any subpoena would qualify for a gag order, which is tremendously problematic. And, indeed, historically such a broad stifling of speech is considered unconstitutional.

At this level of generality, such a claim could be made about just about any subpoena, but the courts have generally been skeptical of claims by federal prosecutors that they can flatly forbid witnesses before the grand jury from disclosing what they have been asked.  The leading case, from the First Circuit, summarized the case law as being divided between courts that read Federal Rule of Criminal Procedure 6(e)(2) as flatly forbidding the imposition of secrecy requirements on grand jury witnesses, and those that allow restrictions only on a demonstration of “compelling necessity ... shown with particularity.”  It is hard to see Velamoor’s affidavit as meeting that standard.  The basis for the gag order is a statute specific to subpoenas to ISP's, but Ken White has collected a number of cases  in which trial judges have demanded specific showings before issuing gag orders to ISP’s in particular.    Knowing as we do that this trial judge asked no questions to pierce the generalities in the application, as a practical matter it seems to me that the judge had no evidentiary basis for enjoining journalists from writing about a government demand to disclose the identity of anonymous speakers who, themselves, were not accused of wrongdoing.

Levy also does discuss the possibility that there is a legitimate investigation going on behind all of this, which is certainly possible, if extremely unlikely. But, at the very least, it seems nearly everyone agrees that the gag order itself was quite ridiculous and unconstitutional. And both AUSA Niketh Velamoor and the judge who signed off on it, Frank Maas, should be called to account for why they requested and approved it, respectively. It's not hard to speculate on the reasons: it seems likely that Velamoor requested it after realizing that Reason was going to tell people about it and that the story would likely become public (and, then, perhaps realizing how it looks to subpoena the identity of hyperbolic internet commenters who weren't making any realistic threats). Similarly, it seems likely that judge Maas didn't look too deeply into the situation and more or less rubberstamped the gag order because it came from an AUSA who insisted it was important for his investigation. Perhaps there's more to it, but it would seem that both Velamoor and Maas should explain what that "more" would be, if they don't want the more obvious speculations to be accepted as fact.

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