Justice Dept. Asked For News Site's Visitor Lists

[Cloud]

people have to provide their social security numbers to access the site? wtf? I guess they didn't comply with the gag order, huh? somebody's in trouble!

[xoxoxoBruce]

Originally Posted by Cloud

somebody's in trouble!

Yeah, I think so.

A Justice Department official familiar with this subpoena just told me that the attorney general's office never saw it and that it had not been submitted to the department's headquarters in Washington, D.C. for review. If that's correct, it suggests that U.S. Attorney Tim Morrison and Assistant U.S. Attorney Doris Pryor did not follow department regulations requiring the "express authorization of the attorney general" for media subpoenas -- and it means that neither Attorney General Eric Holder nor Acting Attorney General Mark Filip were involved. I wouldn't be surprised to see an internal investigation by the Office of Professional Responsibility; my source would not confirm or deny that.

[glatt]

Originally Posted by Cloud

I guess they didn't comply with the gag order, huh? somebody's in trouble!

There was no gag order. Orders come from judges. This came from a US attorney. They were bluffing. The ISP knew they were bluffing and called their lawyers. The lawyers fought it and won and made it public. Yea lawyers!

The real question is how often does the Justice Department send secret subpoenas like this to ISPs and the ISPs believe they have to comply and keep the bullshit secret?

The government added insult to injury by also inserting this language on the first page of the subpoena: "You are not to disclose the existence of this request unless authorized by the Assistant U.S. Attorney. Any such disclosure would impede the investigation being conducted and thereby interfere with the enforcement of the law."

The problem? The law doesn't require the recipient of a federal grand jury subpoena to keep the subpoena secret (which is why, typically, subpoenas often will "request" -- but not require -- a recipient's silence). There are certainly secrecy requirements for participants in the grand jury -- such as the jurors and the prosecutors -- but those requirements do not extend to witnesses (or potential witnesses such as a subpoena recipient). And although the SCA does provide the government with the option of obtaining a court order under 18 U.S.C. § 2705(b) requiring silence when the recipient's disclosure would have an adverse affect on an investigation, the government in this case did not obtain any such gag order.

In sum, without any legal authority to back up their purported gag demand, the government ordered Ms. Clair not to reveal the existence of the subpoena, a subpoena that as already described was patently overbroad and invalid under the SCA. This is exactly the kind of unjustified demand of silence that creates a fog around the government's often-overreaching surveillance activities.