‘Gag order’ tied to demand for Microsoft communications chills reporting

Attorneys for the Reporters Committee for Freedom of the Press and a coalition of 21 media organizations filed a friend-of-the-court brief on Nov. 1 in support of Microsoft’s challenge to a “gag order” restricting the company from disclosing government requests for data on its customers.

In the brief, Reporters Committee attorneys argue that nondisclosure orders linked to government demands to third party vendors like Microsoft for online data or communications can obstruct newsgathering, chill reporter-source relationships, and threaten the free flow of information to the public.

The case before the U.S. District Court for the Eastern District of New York involves an order under the Stored Communications Act that prohibits Microsoft from telling anyone that it has received a search warrant for the email accounts of two employees of a multinational company, which is a Microsoft customer. Microsoft asked the court to allow it to notify at least one of the customer company’s officials, arguing that doing so would not compromise the government’s investigation. However, a magistrate judge denied Microsoft’s request, and the company is now seeking a review of the judge’s order.

The media coalition’s brief specifically highlights why government surveillance and nondisclosure orders are especially problematic for journalists. Because news organizations use the “cloud” to store almost everything, including newsgathering materials, story drafts, and reporter-source communications, the government can seek journalists’ emails, documents, and texts messages directly from cloud-service providers like Microsoft without notifying news organizations. As it did in this case, the government can also obtain nondisclosure orders that prohibit service providers themselves from informing news organizations about the search.

“Preventing providers from informing even the affected customer, without the rigorous showing required by the First Amendment, threatens the press’s vital function as a check on government,” Reporters Committee attorneys argue. The brief urges the court to apply the most “exacting” scrutiny to government nondisclosure requests, given that the orders amount to “content-based prior restraints on speech” and would have a chilling effect on reporting.

This isn’t the first time that the Reporters Committee has helped Microsoft fight gag orders imposed by the government. In 2016, Microsoft challenged the government’s routine use of nondisclosure orders, which, then, were often indefinite in length. The Reporters Committee and a coalition of 29 media organizations filed a friend-of-the-court brief in the case, arguing that gag orders functioned as prior restraints that interfere with newsgathering, block access to court records, and threaten journalists’ relationships with their sources. That case was eventually settled after the government agreed to limit its gag order applications to one year or less.

In this latest case, the media coalition’s brief notes that some of the most sensitive information news organizations store in the cloud includes communications journalists have with sources who depend on strict confidentiality. Government searches of online data or communications could reveal the identity of confidential sources and open them up to government scrutiny.

If news organizations aren’t informed about government searches, Reporters Committee attorneys argue, “it is impossible for the press … to make timely and meaningful challenges to a content or data seizure, assert important privileges, or take steps to protect sources.”

The media coalition’s brief stresses that the threat government surveillance poses to journalism is real. A 2014 study conducted by Human Rights Watch and the American Civil Liberties Union found that increased government surveillance cuts “away at the ability of government officials to remain anonymous in their interactions with the press, as any interaction — any email, any phone call — risks leaving a digital trace that could subsequently be used against them.”

Sources worried about government surveillance could choose not to speak with journalists, leaving important stories unreported.

Read the media coalition’s full brief.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

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