Apple, Microsoft, Facebook and Google have committed to telling users if their data is being seized by government bodies through legal means whenever possible.
According to a Washington Post report, tech companies that hold personal data are becoming increasingly bold when it comes to subpoenas, which a wide range of authorities can issue to gain information related to an investigation. They are challenging subpoenas on behalf of their customers, and then notifying customers of requests for their information.
Search warrants, in contrast, are issued by judges and have stricter legal requirements, and also require more secrecy when it comes to notifying service subscribers.
Some believe that by notifying customers of subpoenas for their data, service providers will force investigators to pursue the more legally rigorous search warrants so that potential criminals aren’t notified prior to a search and seizure – which would allow them to delete incriminating data.
Of course, subpoenas can also be granted a gag order in which the target individual is not notified for up to 90 days.
Privacy and data security lawyer Jason M. Weinstein told the Washington Post that these tech companies make it a harder and more arduous process for law enforcement to investigate crime by notifying users.
Meanwhile, tech companies contend that users have a right to know who is collecting their data and why.
In Google’s legal FAQ, for instance, the company will notify users of a request for information only when they have no means of contacting the user, or if they’re legally required to keep the request secret.
Google states: “We can’t notify you if, for example, your account has been closed, or if we’re legally prohibited from doing so. We sometimes fight to give users notice of a data request by seeking to lift gag orders or unseal search warrants.”
In a C-SPAN interview in March, Marc Zwillinger, an attorney specializing in information security, said almost all service providers have a policy to notify users in civil (as opposed to criminal) matters like divorce proceedings. “If a civil court wanted to get access to anything related to your account, they would provide notice,” said Zwillinger. “But only a few service providers have a policy when it comes to a criminal subpoena or a grand jury subpoena. They would not be able to provide notice of anything under seal, and, again, only some service providers give notice to their users. It is [however] a growing trend among service providers to start giving notice.”
With politicians such as Senator Patrick Leahy calling for updates to the Electronic Communications Privacy Act, many wonder if a compromise can be made between matters of government authority and individual freedom.