Why the government does not always have to engage in traditional e-Discovery

When National Security is Involved, the Rules for e-Discovery Change

Author: Caiti Derenze
Case Citation: In re National Security Letter, No. 16-16067 (9th Cir. July 17, 2017).
Employee/Personnel/Employer Implicated: Employers
eLesson Learned: Service providers may not disclose to users that their data has been sent to the government.
Tweet This: A gag order on service providers allows the government to conduct e-Discovery in secret.

In July 2017, data privacy advocates lost an e-Discovery fight in the United State’s most historically liberal circuit. The Ninth Circuit held In re National Security Letter that it is constitutionally permissible for the government to place a “gag order” upon a service provider to prevent said provider from notifying a private individual that the government obtained their data.

The Ninth Circuit’s decision is significant because it turns the concept of e-Discovery on its head. Traditionally, when parties engage in e-Discovery, they are notified when they have been served with a subpoena and know who is seeking their electronically stored information (“ESI”). However, when the government expresses national security concerns, it may utilize a National Security Letter to side-step a subpoena’s customary notice requirement.

A National Security Letter is an administrative subpoena issued by the federal government to wire and electronic communication service providers seeking user information. When this letter is issued to a provider, it is forbidden to disclose to its users that their data was given to the government. Essentially, the service providers are subjected to a “gag order.”

Service providers have challenged this gag order through litigation. In Twitter v. Sessions and In re National Security Letter, the respective petitioners argued the national security letter gag orders constituted an unlawful, content-based prior restraint on speech violates the First Amendment. In response, the government asserted that the gag order is necessary because if investigative subjects knew they were being investigated, it could compromise the work of law enforcement.

A court analyzes content-based restraints on speech through a strict scrutiny lens. For a restraint on speech to be constitutional under the strict scrutiny test, the government must demonstrate that the gag order requirement is: (1) narrowly tailored; and (2) serves a compelling government interest.

The Ninth Circuit in In re National Security Letter held that the gag order passes the strict scrutiny test. First, the Ninth Circuit confirmed that a compelling government interest exists because the gag order involves national security concerns. The Ninth Circuit then examined whether the gag order requirement was narrowly tailored. The petitioner argued that the gag order was overly restrictive because it barred merely notifying the data user and because it allowed the government to keep it in effect indefinitely. Unfortunately for data-privacy advocates, the Ninth Circuit rejected the petitioner’s argument and held that the gag order was narrowly tailored.

Since data privacy advocates were unsuccessful in the most liberal circuit court, it is unlikely they will succeed in the others. Therefore, practitioners and clients, who are normally aware of what data their adversaries possess, must keep in mind that the government may have a client’s data without them ever knowing.

Caiti Derenze graduated from the College of the Holy Cross located in Worcester, Massachusetts where she earned a B.A. in Political Science in 2013. Prior to attending Seton Hall University School of Law, Caiti taught 5th grade and Kindergarten as a Teach for America corps member in Miami, Florida. After graduating law school in May 2018, Caiti will serve as a clerk to a judge in the Appellate Division of New Jersey.

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