According to newly unsealed documents, a federal court in California ruled that it is unlawful for Adobe to remain under an indefinite gag order regarding a search warrant for one of its users.
In the ruling, the Los Angeles court concluded that the government had not made a sufficient argument to support the ongoing nature of a gag order it issued to Adobe in 2016. Effectively, Adobe successfully argued that these gag orders should come with an expiration date, after which the company can disclose federal investigations into its users as part of routine transparency reporting.
As the case states:
“As written, the NPO [notice preclusion order] at issue herein effectively bars Adobe’s speech in perpetuity. The government does not contend, and has made no showing, that Adobe’s speech will threaten the investigation in perpetuity. Therefore, as written, the NPO manifestly goes further than necessary to protect the government’s interest.”
When the government goes snooping for the digital footprints that software users leave behind, tech companies are increasingly silenced under indefinite gag orders, which prevent them from notifying users about government requests for user data. As in Adobe’s case, these orders are not publicly known until a company prevails against them in court.
Adobe isn’t alone in opposing gag orders. Last month, Cloudflare and CREDO Mobile were finally allowed to identify themselves as recipients of national security letters (NSLs) that similarly prevented them from disclosing the fact that they had ever received such a letter to begin with. In April, Microsoft took the Justice Department to court to challenge one such gag order on constitutional grounds.
Critics like the Electronic Frontier Foundation argue that because they are issued without judicial review and in total secrecy, indefinite gag orders imposed along with national security letters violate the First Amendment.
Additionally, for tech companies prevented from disclosing search warrants on their users, the gag orders impair transparency and can damage user trust. In January, Cloudflare attorney Kenneth Carter detailed how a national security letter from 2013 hindered the company’s efforts to engage effectively in public policy advocacy.
As the government continues to secretly press tech companies for private data on their users, Adobe’s win is a meaningful milestone, but the fight for transparency is far from over.