On June 8 — ably assisted, as I am now, by my co-blogger Patrick — I reported on a federal grand jury subpoena issued to Reason.com in an effort to unmask commenters who used obnoxious hyperbole about Judge Katherine Forrest, who sentenced Ross "Dread Pirate Roberts" Ulbricht to life imprisonment in the Silk Road case.

In that post, I reported that Assistant U.S. Attorney Niketh Velamoor indicated that he "believed" that there was a gag order prohibiting Reason.com from disclosing the existence of the subpoena. I expressed skepticism about that claim because Mr. Velamoor had just two days before signed a letter telling Reason.com that the Department of Justice asked, but did not require, that the subpoena be kept secret.

Since then, additional factors lead me to believe that there is, in fact, an under-seal gag order purporting to prohibit Reason.com from disclosing or discussing the grand jury subpoena.

This post discusses why I think that, and why such a gag order would be an abuse of the law and a grave abuse of power.

Is There A Gag Order?

Since my June 8 post, I've become convinced that it is likely that there is an under-seal gag order, probably obtained on Thursday, June 4, 2015, purporting to prohibit Reason.com from disclosing the existence of the grand jury subpoena. The U.S. Attorney's Office would have gotten such an order by making an under-seal application to a United States Magistrate Judge under authority discussed below, and obtaining an under-seal order in return. It's impossible to obtain such filings from the courts until the matter is unsealed.

Here's my reasoning.

First, AUSA Velamoor told me during our call on June 5, 2015 that he "believed" there was a gag order. I was skeptical at the time because it doesn't make sense to issue a subpoena to a libertarian news organization before you have the gag order in hand. I am now less skeptical, and to the extent I suggested that AUSA Velamoor might not have been honest with me, I withdraw that suggestion, and apologize to him.

Second, in thinking about the call with AUSA Velamoor, I remember that he asked me when someone gave me the subpoena. In retrospect, that inquiry makes sense if he obtained a gag order after issuing the subpoena, such that the timing of the disclosure was legally significant.

Third, Reason has now gone ten days without commenting on the story. This story — the federal government using grand jury subpoenas to uncover anonymous commenters — is squarely in Reason's wheelhouse, and would normally provoke justifiable outrage from them. A slight delay in commenting was consistent with them waiting until their lawyers figured out what was going on; this prolonged silence strongly suggests compulsion.

Reason declined to comment on this post. So did the U.S. Attorney's Office.1

Fourth, and perhaps least persuasive, two2 anonymous sources have asserted that a gag order issued after the subpoena. One source stated simply that a gag order was issued after the subpoena. Another stated, in some detail, that the gag order was served on June 4, after I received the subpoena, and that Reason's lawyers are fighting in court to lift it. I view anonymous sources with skepticism, particularly when they don't provide me with proof (as the source of the subpoena did). However, the sources are corroborated by the factors above.

There's Precedent And Statutory Authority For Such A Gag Order

In the subpoena in question, the U.S. Attorney's office didn't seek the content of any communications. It only sought identifying information about commenters. That, I believe, is why it was able to use a grand jury subpoena under Title 18, U.S.C., Section 2703(c)(2), rather than requiring a warrant under the provisions of that statute applying to stored communications.3

When the government issues a subpoena under Section 2703, it can ask the court under Title 18, United States Code, section 2705(b) for a gag order prohibiting the recipient of the subpoena from disclosing it:

(b) Preclusion of Notice to Subject of Governmental Access.— A governmental entity acting under section 2703, when it is not required to notify the subscriber or customer under section 2703 (b)(1), or to the extent that it may delay such notice pursuant to subsection (a) of this section, may apply to a court for an order commanding a provider of electronic communications service or remote computing service 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. 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;

(2) flight from prosecution;

(3) destruction of or tampering with evidence;

(4) intimidation of potential witnesses; or

(5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.

As Eugene Volokh noted last year, a handful of judges have begun to push back against overuse of this provision, requiring more serious showings of need or putting time limits on the gag periods. For instance, in Texas, a federal judge put limits on a government gag request in a related context:

Upon further deliberation, the court is convinced that setting a fixed expiration date on sealing and non-disclosure of electronic surveillance orders[2] is not merely better practice, but required by law: in particular, the First Amendment prohibition against prior restraint of speech and the common law right of public access to judicial records.

Similarly, a San Jose judge recently refused to grant the government an indefinite gag order:

Meanwhile, were the court to grant the government's request, Yahoo! would be prohibited from ever sharing the existence of the subpoena with anyone-even years after the grand jury moved on to other things. In an era of increasing public demand for transparency about the extent of government demands for data from providers like Yahoo!, this cannot stand.

But published opinions on this matter are few. The vast majority of such requests are processed without any notice or public statement.

It's important to understand that this statute is a significant departure from normal grand jury procedure. Normally grand jury secrecy binds the government, but not the recipients of subpoenas or the witnesses. That's because the grand jury is supposed to be a mechanism to protect the rights of individuals and prevent public investigations from harming the reputation of innocent people. This statute changes that rule dramatically by forbidding witnesses and recipients from talking about the subpoena, even if they have a substantial interest in doing so.

Such is the case here.

The Gag Order — And The Government's Apparent Continued Support Of It — Is Outrageous And Contemptible — It Is Un-American

Unless the government has evidence we don't know about — and there's reason to doubt that — it is shocking and outrageous that the U.S. Attorney's Office sought a gag order and continues to enforce it.

Think about it. This is an order telling an American publication that writes about freedom and abuse of government power that it can't talk about an abuse of government power. It is classic prior restraint, which is one of the most disfavored forms of censorship in American law.

I won't repeat my analysis of why the comments targeted are clearly not true threats, and why the issuance of the subpoena in the first place was a chilling abuse of discretion. But the gag order is an additional, more contemptible abuse of power. The government apparently convinced some magistrate of one or more of these factors justified gagging American journalists:

(1) endangering the life or physical safety of an individual;

(2) flight from prosecution;

(3) destruction of or tampering with evidence;

(4) intimidation of potential witnesses; or

(5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.

I suspect that once this whole matter is unsealed, we'll see that the government had no specific facts — other than the mere existence of the crude hyperbolic comments — supporting any of these factors. In other words, I suspect they won't have any rationale that they couldn't apply every single time they try to unmask commenters on the internet. Some commentators have suggested that the prior existence of other more elaborate and more "true" threats justify inquiry into these, because the government wants to see if the hotheads here and the hotheads there are one and the same. But that would mean that any time a public official receives any potentially true threat, all heated rhetoric about them is a proper target for secret investigation. The government ought only seek to muzzle journalists in the most extreme circumstances, and judges ought only permit it on the most persuasive of evidence.

It gets worse. The government did not merely seek an order gagging a magazine about a subpoena designed to pierce the anonymity of people commenting about a controversial case on a political website. The government has, apparently, continued to insist that the gag order be maintained even after the existence and content of the subpoena has been very widely publicized. What conceivable justification can there be now to prohibit Reason.com from discussing the subpoena, the gag order, and their significance? At this point, the gag order on Reason doesn't prevent the commenters from learning anything. The only thing it prevents is Reason discussing, and criticizing, and questioning the government's decision to subpoena commenters and gag them.

I concede the possibility of some bizarre "What if there's a wizard with a wood chipper?" scenario where the government has specific information that these commenters are (despite the non-true-threat nature of their comments) imminent physical threats. But if that's the case, why did the U.S. Attorney's Office serve the subpoena before it got the gag order? That makes no sense whatsoever.

Reason magazine is critical of the criminal justice system in general and the amoral and ruinous Great War on Drugs in particular. The people who comment on its posts are also critical of those things, using language that I don't like but that is clearly protected by the First Amendment. Federal prosecutors in New York have embarked on a campaign to compel Reason to pierce the anonymity of its community of political commentators, and has forbidden them from discussing that very use of power. The potential for harassment of dissenting individuals and publications is vast. The fact that the government here not only sought a gag order but maintained it after the subpoena became public demonstrated that the power will be abused.

There is no right more important than the right to criticize and question the government. It is the right upon which all other rights rely, without which all other rights are defenseless. Its suppression here is despicable. More people should demand that the U.S. Attorney's Office explain its extraordinary exercise of power.

Will you be one of them? Will your publication be one of them?

Or will you simply be next?

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