Prior Restraints and Digital Surveillance: The Constitutionality of Gag Orders Issued under the Stored Communications Act

By Sumar, Al-Amyn | Yale Journal of Law & Technology, Annual 2018 | Go to article overview

Prior Restraints and Digital Surveillance: The Constitutionality of Gag Orders Issued under the Stored Communications Act


Sumar, Al-Amyn, Yale Journal of Law & Technology


Table of Contents  Introduction  I. Prior Restraints and Digital Surveillance     A. The Classic Doctrine    B. Prior Restraints in the Age of Digital Surveillance  II. The Stored Communications Act     A. The Basics    B. The Gag-Order Provision    C. Microsoft v. DOJ  III. The Constitutionality of [section] 2705(b)     A. SCA Gag Orders Are Prior Restraints--Period    B. SCA Gag Orders Fall Short of Strict Scrutiny, Too    C. Problems of Procedure    D. A Judicial Fix  IV. Conclusion 

Introduction

The First Amendment abhors no restriction on speech more than a prior restraint. A prior restraint on expression--a restriction that "forbid[s] certain communications when issued in advance of the time that such communications are to occur" (1)--is "the most serious and the least tolerable infringement on First Amendment rights," (2) and bears a "heavy presumption" of unconstitutionality. (3) In a word, the prohibition on prior restraints under black-letter First Amendment law is "near-absolute." (4)

The focus of this Article is the source of an unexpected but important challenge to classic prior restraint doctrine: government surveillance in the digital age. Recent litigation about the constitutionality of the Stored Communications Act (SCA) (5) highlights that challenge. The SCA authorizes the government both to obtain a person's stored internet communications from a service provider and to seek a gag order preventing the provider from even notifying the person of that fact. In April 2016, Microsoft brought a lawsuit against the Department of Justice in federal court, alleging that gag orders issued under the SCA constitute unconstitutional prior restraints and content-based restrictions on speech. (6) In a February 2017 decision, the court denied the government's motion to dismiss Microsoft's First Amendment claims. (7) Microsoft later agreed to drop the lawsuit after the Department of Justice issued guidance to prosecutors heightening requirements for obtaining gag orders. (8)

Although it did not provide a final ruling on Microsoft's First Amendment claims, the court was correct to reject the Justice Department's motion to dismiss these claims. SCA gag orders are prior restraints on speech, and they cannot withstand the heavy scrutiny that should apply to them. Recent decisions addressing the constitutionality of similar gag orders in National Security Letters (NSLs), however, suggest that courts may be sympathetic to the view that such orders should not be tested against the scrutiny that applies to traditional prior restraints. That premise is dubious. But even granting it, the SCA poses serious constitutional problems. If courts are to carve out an exception for prior restraints in the era of digital surveillance, that exception should be exceedingly narrow.

This Article proceeds in several parts. It opens with a discussion of prior restraint doctrine and how courts have applied it to gag orders in NSLs. It then turns to the SCA, summarizing its relevant provisions and assessing whether the gag orders it authorizes pass constitutional muster. The Article concludes that they do not, but suggests an interpretation of the statute that might remedy these issues.

I. Prior Restraints and Digital Surveillance

Prior restraints are, put simply, restrictions designed to suppress speech before it takes place. They typically take the form of an administrative scheme requiring a permit or license to engage in certain speech, or a court order enjoining the speech before it occurs. (9)

Classic First Amendment doctrine is uncompromising towards these restrictions. It permits prior restraints in a handful of circumstances, and requires the government to present compelling evidence of their necessity. In the realm of digital surveillance, however, that doctrine appears to be giving way to a more permissive set of rules.

A. The Classic Doctrine

The First Amendment has long held prior restraints in particular contempt. …

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