The U.S. government sent warrants to Facebook asking them to unmask three users and hand over “all contents of communications, identifying information, and other records related to three Facebook accounts for a specified three-month period of time.” These warrants came with a gag, or “non-disclosure,” order barring Facebook from telling anyone — including the people under investigation — about the warrants before handing over to the government the documents and information requested.
Due to the gag order, we know little about the underlying facts in the case. The U.S. government is investigating protesters who demonstrated at the inauguration of U.S. President Trump in Washington, D.C. on January 2017. We believe that as part of its inquiry, the government sent these warrants to Facebook.
Facebook fought the gag order issued by a lower Superior Court, and is now taking its case to the higher Court of Appeals.
Access Now joined the Electronic Frontier Foundation and other civil society organizations in filing the “friend of the court” or amicus brief in support of Facebook’s arguments and its users. In the filing, we defend the right to anonymity under the U.S. Constitution’s First Amendment freedom of speech provisions, and also support Facebook’s right to speak about the warrants and tell its users when they’re being investigated.
In our filling, we drew attention to the international law and norms supporting anonymity for the “‘the important role it plays in safeguarding and advancing privacy, free expression, political accountability, public participation and debate,” citing United Nations special rapporteur David Kaye’s 2015 report to the U.N. Human Rights Council on the issue of encryption and anonymity.
The gag order represents a “prior restraint” on speech, disallowing Facebook from telling people when they’re under investigation. The court must apply extremely exacting scrutiny to this prior restraint, we wrote. “To pass constitutional muster, prior restraints must be necessary to further a governmental interest of the highest magnitude.” Here, the investigation into the inauguration protest is already publicly known, one of many reasons this gag order isn’t necessary. Also, restricting Facebook from saying certain things to its users — namely, that the government seeks their identities and private data — prohibits speech based on its content, which triggers the highest bar for the government to overcome.
In this case, based on the limited information we have, we believe the government overstepped its bounds in denying users access to remedy, or even the knowledge that their information is sought by the government. We told the court, “The First Amendment simply does not permit the government to deprive individuals of their right to seek government redress over invasions into their online anonymity, or to presumptively restrain online speech on a certain topic, without any binding standards, fixed deadlines, or judicial review.”
We’ll keep you updated as the case progresses in D.C. courts, and possibly even higher in the U.S. judicial system.