Prosecutors Successfully Put Gag Order On Top Tech Companies

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Eric Lieberman Managing Editor
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Federal prosecutors in Brooklyn are issuing gag orders to Facebook, Google, and other tech giants, Politico reports. The move comes only two months after a federal magistrate was unwilling to restrain the companies from notifying users about subpoenas.

There are no specifics of the individual targets involved in the probe or what is being investigated in general.

Originally, U.S. Magistrate Judge James Orenstein refused to grant 15 applications for gag orders for grand jury subpoenas to Facebook and other firms because prosecutors did not make a strong enough case that such release of information would alter any further legal proceedings.

Prosecutors on the case then submitted applications to Brooklyn magistrate judge, Steven Tiscione. They argued that user accounts “are believed to belong to and be used by an individual who is a target of the investigation … none of whom know of the investigation,” according to the applications’ language as reported by Politico.

In other words, prosecutors claim if Facebook and other tech conglomerates could notify people who are directly involved, then it could ultimately harm the integrity of the investigation.

While prosecutors apparently made a more convincing case this time by amping up certain phrasing, a lack of disclosure could have been the reason for granting gag orders. Many judges are resistant to accepting prosecutors’ applications for a gag order if it had already been rejected by another judge and there is not a comprehensive report on the matter’s history.

Assistant U.S. Attorney Nathan Reilly admitted that he did not tell Tiscione or his staff that Orenstein had previously issued a written opinion for why he first denied the applications in May, according to Politico. “The undersigned apologizes for this unintentional oversight,” Reilly wrote.

That omission of a critical fact, whether purposeful or not, could have led to Tiscione granting the prosecutors gag orders on the several tech firms.

Rather ironic, two of the newer applications were accessible in the court’s public computerized filing system. Gmail accounts and Twitter handles, the exact information prosecutors stressed could endanger the investigation, were temporarily part of the public record. According to Politico, after inquiring about the disclosed applications, they became inaccessible to the public. They further reported that Jim Gatta, the criminal division chief in the U.S. Attorney’s Office in Brooklyn, told the news publication that clerks made an error in revealing that information.

This case has been befuddled with unusual, even illegitimate, conduct. But what remains clear is that a blatant lack of disclosure by prosecutors could have been the primary reason Facebook, Google and some of the biggest names in the tech world cannot reveal any details about the ongoing investigation.

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