VICTORY: DOJ Backs Down from Facebook Gag Orders in Not-so-secret Investigation

The U.S. Department of Justice has come to the obvious conclusion that there’s no need to order Facebook to keep an investigation “secret” when it was never secret in the first place. While we applaud the government’s about-face, we question why they ever took such a ridiculous position in the first place.

Earlier this summer, Facebook brought a First Amendment challenge to gag orders accompanying several warrants in an investigation in Washington, D.C. that Facebook argued was “known to the public.” In an amicus brief joined by three other civil liberties organizations, EFF explained to the D.C. Court of Appeals that gag orders are subject to a stringent constitutional test that they can rarely meet. We noted that the timing and circumstances of the warrants were strikingly similar to the high-profile investigations of the protests surrounding President Trump’s inauguration on January 20 (known as J20). Given these facts, we argued that there was no way the First Amendment could allow gag orders preventing Facebook from informing its users that the government had obtained their data.

In a joint filing today, Facebook and the DOJ have told the court that the gag orders were no longer necessary, because the investigation had “progressed.” Of course, if the investigation in this case is about what we think it is—the January 20 protests in D.C., opposing the incoming Trump Administration—then it had “progressed” to the point where no gag orders were necessary even before the government applied for them.

While we’re pleased that the government has come to its senses in this case, it routinely uses gag orders that go far beyond the very narrow circumstances allowed by the First Amendment. We’ve fought these unconstitutional prior restraints for years, and we’ll continue to do so at every opportunity.

Read about what we had to say about the government’s original position here.