1 00:00:00,120 --> 00:00:03,960 Speaker 1: The fight over data sneak and peak orders. It's a 2 00:00:04,000 --> 00:00:07,000 Speaker 1: new day in the fight over the government getting data 3 00:00:07,040 --> 00:00:10,160 Speaker 1: of customers stored by tech companies, and the government has 4 00:00:10,240 --> 00:00:13,560 Speaker 1: taken a step back. The Justice Department says it will 5 00:00:13,600 --> 00:00:16,560 Speaker 1: limit the use of sneak and peak orders that forced 6 00:00:16,600 --> 00:00:20,480 Speaker 1: tech companies to turn over customers data without alerting them 7 00:00:20,520 --> 00:00:24,200 Speaker 1: to the clandestine interception of their information. The government was 8 00:00:24,239 --> 00:00:27,800 Speaker 1: facing a lawsuit by Microsoft challenging the practices, and as 9 00:00:27,840 --> 00:00:31,320 Speaker 1: a result of the new Justice Department guidelines, Microsoft will 10 00:00:31,360 --> 00:00:35,360 Speaker 1: now drop that suit. Joining us our Jonathan Man's, professor 11 00:00:35,479 --> 00:00:39,080 Speaker 1: at the University of Buffalo School of Law, and Michael Carroll, 12 00:00:39,360 --> 00:00:43,080 Speaker 1: director of the Program on Information, Justice and Intellectual Property 13 00:00:43,360 --> 00:00:47,800 Speaker 1: at American University Washington College of Law. Michael, the government 14 00:00:48,120 --> 00:00:52,400 Speaker 1: was getting warrants for the information. Explain Microsoft and the 15 00:00:52,479 --> 00:00:56,800 Speaker 1: other tech giants objections. Sure, thanks and thanks for having 16 00:00:56,800 --> 00:00:59,800 Speaker 1: me on UM. Under the law that was passed back 17 00:00:59,800 --> 00:01:03,120 Speaker 1: in nine six UM, there's a provision that says when 18 00:01:03,160 --> 00:01:05,880 Speaker 1: the government gets UM an order and there are three 19 00:01:05,920 --> 00:01:09,920 Speaker 1: flavors of orders UH to get information from one of 20 00:01:09,959 --> 00:01:13,760 Speaker 1: these Internet service providers. They can also require this service 21 00:01:13,760 --> 00:01:18,400 Speaker 1: provider not to notify the subscriber or anyone else. And 22 00:01:18,640 --> 00:01:21,679 Speaker 1: the Department of Justice, according to a lawsuit Microsoft file 23 00:01:22,200 --> 00:01:26,720 Speaker 1: had in a fifty hundred of these orders they had received, 24 00:01:27,120 --> 00:01:30,800 Speaker 1: and about twenty six and hundred of those they were 25 00:01:30,840 --> 00:01:34,640 Speaker 1: required to basically be gagged not to tell anyone else. Um. 26 00:01:35,080 --> 00:01:38,600 Speaker 1: So this was a this was a widespread commonplace practice. 27 00:01:39,319 --> 00:01:41,800 Speaker 1: That the Department of Justice is reviewed and now issued 28 00:01:41,840 --> 00:01:45,360 Speaker 1: a new guidance that complete that cuts back significantly on 29 00:01:45,480 --> 00:01:50,680 Speaker 1: this silencing um of of the of the tech companies. Jonathan, 30 00:01:51,000 --> 00:01:53,160 Speaker 1: this is a I mean, it's sort of interesting here. 31 00:01:53,200 --> 00:01:57,880 Speaker 1: You've got these orders that are very broad, that Microsoft 32 00:01:57,880 --> 00:02:00,640 Speaker 1: suit over them. But how legally could the government get 33 00:02:00,640 --> 00:02:05,080 Speaker 1: away with doing order after order that kept this in, 34 00:02:05,320 --> 00:02:08,679 Speaker 1: that kept these searches so secret? Yeah, you know that. 35 00:02:08,800 --> 00:02:11,600 Speaker 1: The trouble here is that the law that Congress pass 36 00:02:11,680 --> 00:02:15,600 Speaker 1: authorizing these secrecy orders was extremely permissive. I mean it 37 00:02:15,680 --> 00:02:19,000 Speaker 1: still is. Actually that the statute on the books hasn't changed. Um. 38 00:02:19,160 --> 00:02:21,000 Speaker 1: What's changed here is that d o J is sort 39 00:02:21,040 --> 00:02:25,440 Speaker 1: of agreeing to limit itself. Um. And there's basically two 40 00:02:25,880 --> 00:02:29,240 Speaker 1: two big changes here. You know. One they're they're now 41 00:02:29,320 --> 00:02:33,239 Speaker 1: saying that secrecy orders, these gag orders aren't generally gonna 42 00:02:33,320 --> 00:02:36,240 Speaker 1: last forever. Um. They typically will only last for up 43 00:02:36,280 --> 00:02:38,480 Speaker 1: to one year. UM. We'll see how that plays out 44 00:02:38,480 --> 00:02:41,639 Speaker 1: in practice. And the other the other big changes that 45 00:02:41,680 --> 00:02:44,760 Speaker 1: they're now going to give the judge specific reasons why 46 00:02:44,800 --> 00:02:47,359 Speaker 1: they want a gag order and not just submit sort 47 00:02:47,360 --> 00:02:50,280 Speaker 1: of boiler plate requests that don't actually explain to the 48 00:02:50,360 --> 00:02:53,160 Speaker 1: judge the reason the government wants secrecy. The trouble is 49 00:02:53,160 --> 00:02:56,160 Speaker 1: is that the law actually hasn't been changed, so it's 50 00:02:56,200 --> 00:02:58,800 Speaker 1: still much too easy to get these gag orders in 51 00:02:58,800 --> 00:03:03,160 Speaker 1: my opinion, um. And and that's because you know, when 52 00:03:03,160 --> 00:03:05,240 Speaker 1: the government obtains these kinds of gag orders, they're really 53 00:03:05,240 --> 00:03:08,000 Speaker 1: restricting the First Amendment free speech rights of the companies. 54 00:03:08,440 --> 00:03:10,640 Speaker 1: And so they should be required to show that that 55 00:03:10,760 --> 00:03:13,760 Speaker 1: the gag is actually necessary to meet a government's interest 56 00:03:13,960 --> 00:03:15,960 Speaker 1: and that there's no other way to do so. And 57 00:03:15,960 --> 00:03:18,680 Speaker 1: that's actually what the Court u rules in this case 58 00:03:19,040 --> 00:03:21,720 Speaker 1: in allowing the case to proceed. We've been talking to 59 00:03:21,840 --> 00:03:24,480 Speaker 1: Jonathan Mains of the Buffalo School of Law and Michael 60 00:03:24,560 --> 00:03:28,040 Speaker 1: Carroll of the American University Washington College of Law about 61 00:03:28,080 --> 00:03:32,760 Speaker 1: the Justice Department announcing new guidelines scaling back the use 62 00:03:32,800 --> 00:03:37,480 Speaker 1: of sneak and peak orders Michael. Microsoft's president Brad Smith 63 00:03:37,600 --> 00:03:39,760 Speaker 1: applauded the new guidelines, and he said there will be 64 00:03:39,800 --> 00:03:43,280 Speaker 1: no longer any vague legal standards allowing the government to 65 00:03:43,280 --> 00:03:47,920 Speaker 1: get secrecy orders. The Justice Department said that going forward, 66 00:03:48,000 --> 00:03:53,160 Speaker 1: prosecutors must conduct a quote individualized and meaningful assessment of 67 00:03:53,160 --> 00:03:56,040 Speaker 1: whether a secrecy order is needed. Isn't that still a 68 00:03:56,040 --> 00:04:00,600 Speaker 1: little vague? No? Within the criminal law, that kind of 69 00:04:01,200 --> 00:04:03,720 Speaker 1: standard is a is a well known standard in the 70 00:04:03,800 --> 00:04:09,480 Speaker 1: investigation of crimes and other kinds of similar processes. So it, 71 00:04:09,600 --> 00:04:12,680 Speaker 1: as Jonathan said, the memo is quite specific that you 72 00:04:12,720 --> 00:04:14,720 Speaker 1: have to tell the judge what the facts are that 73 00:04:14,800 --> 00:04:17,960 Speaker 1: you already know that are the basis for your asking 74 00:04:18,000 --> 00:04:21,800 Speaker 1: for secrecy, which is quite different from the more broad 75 00:04:21,880 --> 00:04:26,640 Speaker 1: standard that the statute actually lays out. Jonathan, If the 76 00:04:27,160 --> 00:04:29,800 Speaker 1: statute has such a broad standard and the government has 77 00:04:29,839 --> 00:04:32,800 Speaker 1: been using it all this time, what's the motivation here 78 00:04:32,920 --> 00:04:37,360 Speaker 1: that caused the Justice Department to issue these new guidelines. 79 00:04:38,720 --> 00:04:41,440 Speaker 1: So I think Microsoft doctor deserves quite a bit of 80 00:04:41,480 --> 00:04:45,120 Speaker 1: credit for bringing this lawsuit um and uh and bringing 81 00:04:45,120 --> 00:04:48,159 Speaker 1: this issue forward. You know, their their lawsuit alleged that 82 00:04:48,320 --> 00:04:50,719 Speaker 1: this practice violent of the first its own First Amendment 83 00:04:50,760 --> 00:04:53,440 Speaker 1: rights and also the Fourth Amendment rights of of users 84 00:04:53,520 --> 00:04:56,200 Speaker 1: who aren't able to know that the government is obtaining 85 00:04:56,200 --> 00:04:59,800 Speaker 1: their information and challenge um those searches and UH, and 86 00:05:00,000 --> 00:05:04,400 Speaker 1: a court basically UM agreed and so far as you know, 87 00:05:04,480 --> 00:05:07,800 Speaker 1: letting the case proceed um on the First Amendment claims 88 00:05:08,080 --> 00:05:10,080 Speaker 1: and and so I think I think basically that the 89 00:05:10,160 --> 00:05:13,920 Speaker 1: lawsuit forced the Department of Justice to reevaluate its policy 90 00:05:14,000 --> 00:05:18,560 Speaker 1: and to try to improve its practices UM in response 91 00:05:18,640 --> 00:05:21,520 Speaker 1: and and UH, and that's what's prompted the change that 92 00:05:21,560 --> 00:05:27,360 Speaker 1: we see today, Michael. The memo says prosecutors shouldn't delay 93 00:05:27,480 --> 00:05:30,960 Speaker 1: notifying people whose communications have been obtained for more than 94 00:05:31,040 --> 00:05:36,039 Speaker 1: a year. As was mentioned, barring exceptional circumstances, is a 95 00:05:36,160 --> 00:05:39,720 Speaker 1: year a long time if someone is being investigated and 96 00:05:39,880 --> 00:05:42,200 Speaker 1: perhaps wants to try to head off the charges in 97 00:05:42,279 --> 00:05:47,159 Speaker 1: some way, not necessarily, because I said there were three flavors. 98 00:05:47,160 --> 00:05:49,520 Speaker 1: So one of these flavors would be a subpoena, which 99 00:05:49,560 --> 00:05:52,320 Speaker 1: would be an order early on in the case, just 100 00:05:52,360 --> 00:05:55,479 Speaker 1: to get subscriber information to present to a grand jury. 101 00:05:55,680 --> 00:05:58,360 Speaker 1: So you might not even have a criminal indictment. And 102 00:05:58,400 --> 00:06:00,880 Speaker 1: a criminal case that has gotten ordered in the courts 103 00:06:00,920 --> 00:06:04,880 Speaker 1: and so requesting secrecy during that period because the grand 104 00:06:04,920 --> 00:06:09,600 Speaker 1: jury process is also secret. UM, it seems like a 105 00:06:09,640 --> 00:06:14,440 Speaker 1: reasonable time. I mean, I agree there there would be, UM, 106 00:06:14,480 --> 00:06:17,520 Speaker 1: there's an appending law that would require more of the 107 00:06:17,600 --> 00:06:20,240 Speaker 1: Justice Department, But a year does not seem out of 108 00:06:20,240 --> 00:06:23,800 Speaker 1: bounds compared to the time that they were looking at 109 00:06:24,080 --> 00:06:29,440 Speaker 1: UM with some you know, indefinite orders to stay secret. Jonathan, 110 00:06:31,040 --> 00:06:33,760 Speaker 1: the Justice Department these guidelines as coined of these guidelines 111 00:06:33,760 --> 00:06:37,520 Speaker 1: which sound on their face fairly reasonable, Microsoft dropping the suit. 112 00:06:38,560 --> 00:06:43,200 Speaker 1: Is this enough or should Congress still act on this matter? Now? 113 00:06:43,240 --> 00:06:45,400 Speaker 1: I I think this is a step in the right direction, 114 00:06:45,440 --> 00:06:48,240 Speaker 1: but I don't think it's enough. UM. I think that, 115 00:06:48,320 --> 00:06:50,240 Speaker 1: you know, like I said before, the standards are still 116 00:06:50,240 --> 00:06:52,919 Speaker 1: a little bit too loose for actually getting these orders. 117 00:06:52,960 --> 00:06:56,240 Speaker 1: And maybe even more important, UM, you know, with the 118 00:06:56,279 --> 00:06:58,960 Speaker 1: shift of all of our information to the cloud, you know, 119 00:06:59,000 --> 00:07:01,320 Speaker 1: all of our email and sense of information is now 120 00:07:01,360 --> 00:07:05,599 Speaker 1: stored with third parties online. UM, it means that the 121 00:07:05,640 --> 00:07:08,800 Speaker 1: government UM is now going to be relying on these 122 00:07:08,839 --> 00:07:11,760 Speaker 1: kinds of searches the third party tech companies to obtain 123 00:07:11,800 --> 00:07:14,320 Speaker 1: information about individuals, when in the past they would have 124 00:07:14,320 --> 00:07:16,760 Speaker 1: had to get a warrant and get it from you, 125 00:07:16,760 --> 00:07:18,000 Speaker 1: you know, get it from you you you would be 126 00:07:18,040 --> 00:07:22,040 Speaker 1: unnoticed because they'd be um, you know, searching your papers. Uh. 127 00:07:22,080 --> 00:07:24,760 Speaker 1: And so this is this is really a fundamental shift 128 00:07:24,800 --> 00:07:29,440 Speaker 1: in the way that investigations occur. And it strikes me that, um, 129 00:07:29,480 --> 00:07:32,240 Speaker 1: you know, Congress needs to be thinking carefully about how 130 00:07:32,240 --> 00:07:37,680 Speaker 1: we want to adapt the protections of um, the electronic 131 00:07:37,680 --> 00:07:40,360 Speaker 1: communications privacy active this this new world in which so 132 00:07:40,440 --> 00:07:42,640 Speaker 1: much of our lives are lived online through tech companies. 133 00:07:43,240 --> 00:07:46,000 Speaker 1: Michael Microsoft said in a statement it's not done with 134 00:07:46,080 --> 00:07:49,200 Speaker 1: its work to improve the use of secrecy orders and 135 00:07:49,200 --> 00:07:52,000 Speaker 1: it will continue to turn to the courts if needed. 136 00:07:52,040 --> 00:07:54,880 Speaker 1: How do you read that well that I think, as 137 00:07:54,960 --> 00:07:59,040 Speaker 1: Jonathan had said, this is the Justice Department limiting itself, um, 138 00:07:59,120 --> 00:08:02,560 Speaker 1: and so micro Soft it's just letting everyone know that, 139 00:08:02,960 --> 00:08:06,640 Speaker 1: UM if if the Justice Department either doesn't live up 140 00:08:06,640 --> 00:08:10,440 Speaker 1: to its word in this new guidance or otherwise starts 141 00:08:10,440 --> 00:08:13,360 Speaker 1: to engage in other kinds of behavior, that Microsoft will 142 00:08:13,400 --> 00:08:18,880 Speaker 1: reserve all of its rights to ask the courts to intervene. Again, Jonathan, 143 00:08:18,920 --> 00:08:22,400 Speaker 1: how will we know if the new guidelines are actually 144 00:08:22,960 --> 00:08:25,280 Speaker 1: working and effective in the way that they should be. 145 00:08:26,360 --> 00:08:29,200 Speaker 1: That's that's actually a great question. Um that this this 146 00:08:29,240 --> 00:08:33,040 Speaker 1: whole scheme I think still depends on companies like Microsoft 147 00:08:33,720 --> 00:08:35,880 Speaker 1: sort of stepping up and sounding the alarm as they 148 00:08:35,880 --> 00:08:40,120 Speaker 1: think things are going off the rails. So the companies 149 00:08:40,120 --> 00:08:42,520 Speaker 1: are the ones receiving these surveillance orders, that they'll be 150 00:08:42,559 --> 00:08:47,080 Speaker 1: the ones receiving gag orders moving forward. And it's really, um, 151 00:08:47,120 --> 00:08:49,000 Speaker 1: you know what we're we're all really relying on them 152 00:08:49,040 --> 00:08:52,520 Speaker 1: to uh step up and go to court or to 153 00:08:52,840 --> 00:08:55,599 Speaker 1: alert their customers when the gag orders expire, otherwise to 154 00:08:55,720 --> 00:08:58,520 Speaker 1: sort of alert the public that something might not be 155 00:08:58,640 --> 00:09:02,760 Speaker 1: quite right. So um, so hopefully, I mean, I'm hopeful 156 00:09:02,800 --> 00:09:05,200 Speaker 1: that companies like Microsoft will continue to to sort of 157 00:09:05,400 --> 00:09:08,240 Speaker 1: have their customers interests in mind when addressing these issues. 158 00:09:08,520 --> 00:09:11,240 Speaker 1: It also occurs to me that, um, you know, one 159 00:09:11,240 --> 00:09:13,280 Speaker 1: thing the government could commit to doing in these kinds 160 00:09:13,280 --> 00:09:15,640 Speaker 1: of cases is that once the gag orders are no 161 00:09:15,720 --> 00:09:20,680 Speaker 1: longer necessary, um, they could sort of unseal the the 162 00:09:20,760 --> 00:09:23,719 Speaker 1: court proceedings that led to the starch orders. So if 163 00:09:23,720 --> 00:09:26,520 Speaker 1: it was the kind of surveillance order that required them 164 00:09:26,559 --> 00:09:29,360 Speaker 1: to go to court to get authorization, um, that could 165 00:09:29,400 --> 00:09:31,440 Speaker 1: be on sealed. So that the public could see you know, 166 00:09:31,480 --> 00:09:35,960 Speaker 1: how how these surveillance orders are being used. Michael, what 167 00:09:36,040 --> 00:09:39,960 Speaker 1: are the chances that the e c p A Modernization Act, 168 00:09:40,080 --> 00:09:45,920 Speaker 1: which was a bipartisan bill, will pass in about thirty seconds? Yeah, 169 00:09:46,080 --> 00:09:49,640 Speaker 1: it's great. Well, the House passed it unanimously. You wouldn't 170 00:09:49,840 --> 00:09:53,640 Speaker 1: understand that Congress can actually agree on something, but modernizing 171 00:09:53,960 --> 00:09:57,480 Speaker 1: privacy law in the Internet age they agree on a 172 00:09:57,559 --> 00:10:00,320 Speaker 1: bill has been introduced into the Senate. Do and all 173 00:10:00,320 --> 00:10:02,240 Speaker 1: the other things going on in the Senate as I 174 00:10:02,320 --> 00:10:05,880 Speaker 1: can't ballpark that. Um. I think that I think there's 175 00:10:05,920 --> 00:10:09,480 Speaker 1: one little hang up with the Security in Exchange Commission 176 00:10:09,960 --> 00:10:12,600 Speaker 1: wanting to retain some power that it might lose. Um. 177 00:10:12,840 --> 00:10:15,680 Speaker 1: And that's that's really what's holding it up. UM. But 178 00:10:15,800 --> 00:10:19,199 Speaker 1: I think the need to modernize privacy law is really 179 00:10:19,240 --> 00:10:22,480 Speaker 1: strong and strongly felt by members of cross Both. Alright, 180 00:10:23,120 --> 00:10:25,240 Speaker 1: thank you both so much for being on Bloomberg Law. 181 00:10:25,280 --> 00:10:29,000 Speaker 1: That's Michael Carroll of the American University Washington College of 182 00:10:29,080 --> 00:10:33,120 Speaker 1: Law and Jonathan Mains of the University of Buffalo School 183 00:10:33,120 --> 00:10:35,840 Speaker 1: of Law coming up on Bloomberg Law. A fan strikes 184 00:10:35,920 --> 00:10:38,280 Speaker 1: out news lawsuit against the New York Yankees