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.
18 U.S.C. 2705(b)
Under §2705(b) of Title 18 of the United States Code, the government may apply to the court under specified circumstances for an order commanding a provider “to whom a warrant, subpoena, or court order is directed, for such period as the court deems appropriate, not to notify any other person of the existence of the warrant, subpoena, or court order.”1 Upon such application, the court shall enter such an order if it determines that there is reason to believe that notification of the existence of the warrant, subpoena, or court order will result in (1) endangering the life or physical safety of an individual; or (2) flight from prosecution; or (3) destruction of or tampering with evidence; or (4) intimidation of potential witnesses; or (5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.2
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