Last month, Fox News revealed that Trump administration officials Dan Scavino Jr. and Kash Patel received delayed notifications that their data had been accessed as part of a low-profile FBI probe during the Biden administration. More recently, reports and whistleblower documents released during a Senate Judiciary Committee hearing revealed a broad investigation “encompassing 92 Republican organizations and individuals.”
Right now, investigations are being framed as a one-way affair—but leveraging the government to investigate political opponents is a bipartisan ordeal. In June 2021, for example, the New York Times reported that the Trump administration secretly sought tech company data about journalists, Democratic lawmakers, and White House officials as part of “wide-ranging investigations into leaks and other matters.”
Left unchecked, bipartisan probing of consumer data threatens the privacy principles of transparency and informed consumer consent. To help restore trust, Congress should revisit legislation to restore transparency and accountability in investigations.
A Privacy Violation: Indefinite Gag Orders
The federal government accesses emails and online messages through the Stored Communications Act of 1986, which protects online communications of private and public parties from government surveillance without court approval. When warrants or subpoenas are obtained, the court often issues delayed nondisclosure orders (NDOs)—essentially court-backed gag orders of private companies that prohibit them from informing relevant parties of ongoing investigations. Unfortunately, these gag orders can go on indefinitely, often with no set end date—placing the investigated parties under a perpetual state of ignorance while undermining consumer trust and violating core data privacy principles like transparency and informed consumer consent.
Data Privacy Double Standards
At the state level, transparency is a foundational pillar of existing data privacy law. Those state laws err when they apply data protections only to private sector entities. Under all state comprehensive privacy frameworks, companies must inform consumers of data access through privacy policies and website notifications. A standard that, unfortunately, is only applied to the private sector. But consumers are denied these foundational privileges when data is accessed under laws like the Stored Communications Act, which allows the government to gag companies and prevent them from notifying consumers of ongoing investigations of their online and stored data. When public figures criticize nondisclosure orders after delayed notifications, their critique feels distant from everyday American. But everyone should care because these orders are routine cogs of non-political investigations, meaning many consumers are often unaware of government probes into private data. That violates the spirit of data privacy—and it must change.
Unearthing the Solution
In Tuesday’s Senate Judiciary committee hearing, FBI Director Kash Patel promised that the “FBI will only bring cases that are based in fact and law and have a legal basis to do so, and anyone that does otherwise will not be employed at the FBI.” That commitment could help reduce privacy violations insofar as current investigations rely on indefinite disclosure orders to opaquely probe online data—but it does nothing to stop the problem long-term. Refraining from nonessential investigations does not address the underlying issue of indefinite NDOs. Besides, future FBI directors could easily discard that guiding vision at their discretion.
That is why Congress must also act. The most obvious place to start is by unearthing the bipartisan NDO Fairness Act of 2022, which would have effectively eliminated indefinite gag orders by mandating that NDO’s be granted and extended only in 30-day increments. It would have also increased transparency and accountability—further protecting consumer privacy protections—by requiring a written explanation of harm and by narrowly tailoring these orders to preserve privacy protection. Congress will be needed if long-lasting reform is to endure.
Why Consumers Should Care
Indefinite gag orders undermine free speech and the principles of sound data privacy governance. It is uncertain whether legislation placing more guardrails on NDOs would have prohibited the government from leveraging court orders to gag companies and obtain sensitive information on their political opponents in this specific instance. What is more clear is that privacy guardrails could have instilled more confidence in the impartiality of past and ongoing investigations.
Logan Kolas is the Director of Technology Policy at the American Consumer Institute, a nonprofit education and research organization. For more information about the Institute, follow us on X @ConsumerPal.