Soon after the subpoena was served on Reason Hit and Run for info about its commenters and their favorite brand of woodchippers, Ken White posted it at Popehat. Everything then went dark, as the government obtained a gag order to silence Reason from disclosing anything about the subpoena.
Paul Alan Levy at Public Citizen wasn’t satisfied when the gag order was lifted, after news of the subpoena went viral. That’s just not how Paul rolls, so he moved to unseal the papers.
I wanted to see the basis for requesting the gag order – the factual showings that supported its issuance – because the order itself was so cursory in reciting the statutory factors and saying that “one or more of [them]” was the basis for issuance.
Velamoor’s initial response was unhelpful, but he later called me back to ask me to explain the legal basis for the demand; once he understood what the law is (and, presumably, he figured out that Public Citizen has a track record of litigating unsealing issues), he asked the court to unseal the application and sent it to me.
What previously unknown facts, allegations, assumptions, inferences, would be revealed to understand why the government so desperately needed secrecy, and why Magistrate Judge Frank Maas agreed that the safety of the nation demanded silence?
The application is here. Submitted New York style in the form of an affidavit from AUSA requesting it, the application includes an averment that the basis for the gag order was that “the subpoena relates to an ongoing criminal investigation . . ., the account holder is suspected of being involved with or associated with persons involved in the conduct under investigation, and disclosure of the subpoena to the account holder or to any other person may alert subjects or targets of the ongoing investigation [who in turn might] flee or avoid prosecution or tamper with evidence, including electronically stored information that is easily tampered with.”
At this level of generality, such a claim could be made about just about any subpoena.
Lawyers have a word for this. Boilerplate. It refers to sentences, phrases, words that are strung together in every application, used over and over to satisfy some rote requirements, but say nothing specific, nothing individualized to the situation. It’s just the usual, routine stuff that’s so generic that it’s cut and paste, glossed over, ignored. It recites statutory language, empty background rhetoric, blah, blah, blah.
What it does not do is provide any factual basis for the specific application at hand. Why should something be done here, this time, under these specific circumstances? What facts here justify this relief?
As Levy points out, if it’s this easy to get a gag order, prosecutors can get one automatically in any case involving electronic data without any proof:
Knowing as we do that this trial judge asked no questions to pierce the generalities in the application, as a practical matter it seems to me that the judge had no evidentiary basis for enjoining journalists from writing about a government demand to disclose the identity of anonymous speakers who, themselves, were not accused of wrongdoing.
The U.S. Attorney’s Office might has well have a macro that generates gag orders; it’s not clear what role Magistrate Frank Maas plays that couldn’t be fulfilled equally well by an autopen.
When people unfamiliar with boilerplate read it, they tend not to recognize that it’s just empty words. It is crafted to give the appearance of being meaningful, or actually saying something, when it doesn’t. The first time you see it, you read each and every word and think to yourself, is that sufficient?
By the tenth time you read the same verbiage, you know better. It’s just the filler, the fluff, often required by law to be in there to meet some sort of requirement, but otherwise generic and meaningless. For those people who are extremely impressed by pages and pages of legalish writing, they would be terribly disappointed to find out that most of those pages can be found in every document of its sort, repeated ad infinitum, and actually have nothing in particular to do with you.
So what was there to explain why in this case, under these circumstances, due to this woodchipper, a gag order was needed? What made the commenters at Reason likely to abscond to Tahiti if they learned of the great woodchipper investigation? What gave rise to the government’s fear that they would disable their woodchippers before government agents arrived to seize them as evidence of felonious intent?
Or, to raise it to the next level, what was the basis upon which Magistrate Judge Maas signed the gag order?
That’s the problem with boilerplate. You’ve seen it a hundred times and stop reading. You can’t bear to read it again, understandably, and stare for a moment at page after page of empty words, thinking of what to eat for lunch and why The North Face refuses to honor its lifetime warranty. Then you sigh, flip the pages as if you give a damn, and sign the back page in the hope that they will go away and leave you alone.
Magistrate Judge Maas must be pretty pissed. At the government. At AUSA Niketh Velamoor and, I would suspect, at himself. Most of the time, signing off on something as insignificant to the government as an order suspending the First Amendment to the Constitution doesn’t come back to bite you in the butt. But every once in a while, a guy like Paul Alan Levy digs in and reminds us how all the platitudinous crap being sold to the unwary is nothing more than boilerplate.