In an October 19th memo titled Policy Regarding Applications for Protective Orders Pursuant to 18 U.S.C. § 2705(b) of the Stored Communications Act (SCA), Deputy Attorney General Rod J. Rosenstein announced new Department of Justice rules and guidelines for DOJ attorneys seeking gag orders when the government obtains certain records and information from providers of electronic communications. Under the SCA, the government may compel disclosure of information by subpoena, a court order, or a search warrant. Although the SCA does not automatically forbid providers from notifying their customers, the government often obtains a protective order under § 2705(b) prohibiting the provider from notifying anyone. The new policy requires prosecutors to follow certain steps to assure that any future protective order has “an appropriate factual basis and each order should extend only as long as necessary to satisfy the government’s interest.” In response to the new binding policy, Microsoft dropped its lawsuit challenging the widespread use of gag orders because it believes the binding policy “should diminish the number of orders that have a secrecy order attached.”
The Training Division provides program materials here on wiretaps and electronic surveillance.