NYLJ: Indefinite Gag Orders Under the Stored Communications Act by Peter A. Crusco:
Electronically stored information (ESI) may provide a virtual treasure trove of incriminating evidence, so it is no surprise that such data is the subject of frequent government applications for court orders for Internet providers’ customer account records. Concomitantly, “gag orders” also known as “preclusion-of-notice orders,” issued under Title II of the Electronic Communications Privacy Act of 1986 (ECPA), that is, the Stored Communications Act, 18 U.S.C. §2701 et. seq., are frequently included in these government-inspired investigative demands. Specifically, these judicially authorized nondisclosure demands for data and communications served on providers of electronic communications service (ECS) or remote computing service (RCS) prohibit the providers from notifying their customers, frequently the targets of the investigation, of the government orders. Recently, government requests for nondisclosure orders have come under increasing judicial scrutiny. Questions raised include whether these gag orders violate the First Amendment, and constitute a prior restraint on speech, or violate the Fourth Amendment as an unreasonable search. These and related issues are addressed in this article.