By Ross Todd, From The Recorder

SAN FRANCISCO—A federal magistrate judge in San Jose has refused to sign off on an indefinite gag order prohibiting Microsoft Corp. from disclosing a warrant for access to a Hotmail account holder’s email.

U.S. Magistrate Judge Paul Grewal, who has previously pushed back against government requests for electronic surveillance, ruled Nov. 25 that investigators are not entitled to delay notification without specifying an end point.

“The problem is that the government does not seek to gag Microsoft for a day, a month, a year, or some other fixed period,” Grewal wrote. “Having persuaded the court that a gag order is warranted, it wants Microsoft gagged for … well, forever.”

Grewal’s order adds to the growing body of magistrate judge rulings in the Northern District of California and elsewhere questioning the lawfulness of some government surveillance tactics. After Edward Snowden’s revelations outlined the National Security Agency’s surveillance program last year, magistrates in California, Texas, and Washington, D.C. questioned government search practices in a movement that The Washington Post called the “Magistrates’ Revolt.” This summer, U.S. Magistrate Judge Nathanael Cousins of the Northern District of California asked for briefing on whether the government needs a warrant to track a suspects’ locations via cellphone towers. Grewal himself previously refused to sign off on the government’s request for a warrant to search a suspect’s Gmail account as overbroad, and questioned a government request to indefinitely put off notifying a suspect that his vehicle’s movements were being tracked.

Linda Lye, a senior staff attorney at the American Civil Liberties Union, lauded Grewal’s ruling, saying that it challenges what amounts to a “secret electronic surveillance docket” in the federal courts. She said most electronic surveillance orders are drafted to remain sealed until a further order of the court. Since the government is filing those requests ex parte, there’s no one with the knowledge and incentive to request to unseal those dockets if investigations don’t lead to charges, she said.

A spokesman for the U.S. attorney’s office declined to comment on the matter.

In last week’s order, Grewal concluded that the investigating agent’s affidavit established probable cause to justify ordering Microsoft to provide access to the requested email. It also convinced him that notifying the target could jeopardize the investigation.

However, Grewal found that the Stored Communications Act required him to define some end to any order prohibiting Microsoft from disclosing the existence of the warrant.

“Try as it might, the court cannot square this demand with other plain language in the section that authorizes the court to preclude notice only ‘for such period as the court deems appropriate,'” he wrote. “It is certainly true that an infinite period might be qualify a ‘period’ as a matter of mathematics or set theory. But a more common sense view of ‘period’ in the statute suggests some limit less than infinity.”

Grewal wrote that it would fit better with the law’s “language and purpose” for the government to request a limited nondisclosure period, paired with an obligation to seek renewal if needed.

Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation, said it often falls to the electronic communication service providers to challenge overly broad surveillance requests. “I think that [companies] are starting to realize that having their users’ backs is good for business,” he said.

But having a judge like Grewal ask tough questions of the government before the service providers even became aware of an investigation, he added, provides “a real service to the legal community and the public at large.”

IMAGE: U.S. Magistrate Judge Paul Grewal, Northern District of California Jason Doiy / The Recorder

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