By Reed Albergotti
The Wall Street Journal
In a nod to user privacy, Google Inc., Microsoft Corp. and Apple Inc. said they will begin notifying users whose information has been requested by the government.
The move pits the companies against federal law-enforcement officials, who said the disclosures could harm investigations, and adds to the growing divide between Silicon Valley and Washington. Government officials have long asked Internet companies to voluntarily keep the subpoenas secret to avoid alerting criminal suspects.
In recent months, leaders in the technology industry, including Google Executive Chairman Eric Schmidt and Facebook Inc. founder Mark Zuckerberg, have lashed out at the National Security Administration for the surveillance tactics exposed by former contractor Edward Snowden.
The new policies won’t likely have a direct affect on cases of national security, where government agencies can request information through National Security Letters that companies are barred from disclosing. It also won’t affect search warrants required by federal investigators to get access to the content of emails.
Privacy and civil-liberties advocates hailed the policy changes by tech companies as a step forward and a needed check on government authority. Notifying users of the subpoenas is “what companies should be doing,” said Marc Rotenberg, executive director of the Electronic Privacy Information Center and a law professor at Georgetown University. “It could slow the investigative process down. But that’s the point,” he said.
Legal experts said the changes could lead the government to seek orders preventing tech companies from notifying users of the subpoenas.
Twitter Inc. and WordPress have already notified some users of subpoenas. In two separate cases, the companies received subpoenas from the government, which wanted to identify users who had made comments about politicians on the blogging platforms.
Before turning over the identities of the bloggers, Twitter and WordPress notified the users, who then fought the subpoena in federal court. In the WordPress case, the government withdrew its request. In the Twitter case, the person in question agreed to reveal his identity to officials and meet with investigators privately. No charges were brought. Both people were represented by Arthur Spitzer, a lawyer for the American Civil Liberties Union.
Since July, Yahoo Inc. has also notified users about subpoenas, which has changed the behavior of investigators, it says. “We’ve noted that law-enforcement agencies frequently choose to withdraw their request once we inform them of our user notification policy,” a Yahoo spokeswoman said.
In March, the Justice Department requested a gag order on subpoenas to Yahoo and Twitter. A federal magistrate judge refused to grant the order until both companies had a chance to be heard in court. A higher court overruled the judge and granted the gag order.
If a company doesn’t comply with a court order, it could be held in contempt.
Rainey Reitman, activism director at the Electronic Frontier Foundation, has studied drafts of policies that tech companies are planning to release publicly in coming weeks, and says they are varied. Apple’s, for instance, will notify users when any law-enforcement agency requests information. Google will only notify users if it gets a request from U.S. law enforcement, she said.
Just putting the policies into writing, she said, will have an impact. “This is a sea change in the tech industry,” she said.
The companies have carved out exceptions for when they won’t notify users. Microsoft said it would do so “unless specifically prohibited by law.” Apple said it wouldn’t disclose subpoenas when “a child or other person” is in danger.
Facebook hasn’t changed its policies, but a spokeswoman said the company is “reviewing how we can improve upon what we’re already doing.”
The policies were earlier reported by The Washington Post.
–Alistair Barr, Daisuke Wakabayashi, Shira Ovide and to Douglass MacMillan contributed to this article.