New Documents Reveal Government Effort to Impose Secrecy on Encryption Company
By Brett Max Kaufman, Staff Attorney, ACLU Center for Democracy
Oct 4 2016
When it comes to this country’s courts, longstanding practice, history, and the Constitution make clear that openness—of doors, of evidence, of arguments, of opinions—is the rule. Like the First Amendment’s guarantee of freedom of speech, that rule is not absolute. But it puts in place a default, one that forces those who want to keep court proceedings secret to show, in each case, that secrecy is warranted—and that the need for secrecy overcomes the traditions and values of openness that animate the default rule in the first place.
But in far too many cases across the country, the government appears to have reversed the presumption that the First Amendment establishes, opting to keep secret information about its demands for private data where transparency is required and would serve the public good.
Today—after getting the government to back down on one of these recent secrecy overreaches—the ACLU and our client, Open Whisper Systems (OWS), are publishing a series of documents that help illuminate just how much the exception has become the rule in American courtrooms and law enforcement. Indeed, that they are public at all is remarkable by itself.
The fight began earlier this year as part of a federal grand jury proceeding in the Eastern District of Virginia. The government issued a subpoena seeking a vast array of information from Signal, the encrypted-communications app launched by OWS. (The subpoena requested information for any accounts associated with two phone numbers, but one of the numbers was not associated with a Signal account.) OWS is also the force behind the Signal Protocol, which powers the encryption built into WhatsApp, Facebook Messenger, and Google’s Allo.
As the documents show, the government’s effort did not amount to much—not because OWS refused to comply with the government’s subpoena (it complied), but because the company simply does not keep the kinds of information about their customers that the government sought (and that too many technology companies continue to amass). All OWS was able to provide were the dates and times for when the account was created and when it last connected to Signal’s servers.
But when the government served OWS with its subpoena in the first half of 2016, it also served the company with a gag order demanding complete silence as to the kinds of data sought, the fact of the company’s compliance, and more—and as the documents we’re releasing today show, the gag was to last an entire year.
A magistrate judge signed the gag order, citing “reason to believe that notification of the existence of the . . . subpoena will seriously jeopardize the investigation [under prosecution by the grand jury], including by giving targets an opportunity to flee or continue flight from prosecution, destroy or tamper with evidence, change patterns of behavior, or notify confederates.”