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RCFP backs bill to limit ‘gag’ orders under Stored Communications Act

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  1. Protecting Sources and Materials

The Reporters Committee strongly supports provisions in proposed federal legislation that would make it easier for third-party electronic communications providers to notify journalists that the government has used warrants, court orders or subpoenas to force the disclosure of their communications records.

In a letter sent to leaders of the Senate Judiciary Committee on July 19, 2022, Reporters Committee attorneys wrote that the NDO Fairness Act would implement more stringent standards for granting “gag” orders under the Stored Communications Act. Such gag orders prevent third-party providers from notifying customers or subscribers that their records have been sought or seized by government authorities.

Advance notification is important because it allows affected journalists and news organizations an opportunity to negotiate the scope, or challenge in court, improper demands for their records.

The bill, S. 4373, follows public revelations in 2020 that the Justice Department under the Trump administration used secret demands for communications records and gag orders in a wide-ranging effort to identify news media sources in national security leak cases. News of those legal demands led Attorney General Merrick Garland to issue a memorandum in 2021 barring the Justice Department from seizing journalists’ records.

Although reforms beyond this legislation are needed, S. 4373 would:

  • Raise the standard for gag order approval, requiring a court to conclude that not granting the request is “substantially likely” to cause certain harms;
  • Require gag orders to be narrowly tailored;
  • Limit indefinite delays for notification orders; and
  • Require that attorney general to report certain data annually to the House and Senate  Judiciary Committees.

“If enacted,” Reporters Committee attorneys concluded, the NDO Fairness Act “would provide an essential protection for press freedom and would better insulate sensitive source information and work product from undue government scrutiny.”