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Comment by Vinnl | Hacker News Reader

For their first subpoena [1], they said:

> It originally included a broad gag order that would have prevented us from publishing this notice, but the ACLU represented us in quickly and successfully securing our ability to publish the transcripts below.

This subpoena says:

> you are asked not to disclose the existence of nature of the subpoena

But the post doesn't mention that at all. I wonder how much effort they had to spend, if any, to be able to publish this this time.

[1] https://signal.org/bigbrother/eastern-virginia-grand-jury/

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Does the phrase "you are asked" have a legal bearing though? is it something they can just choose to not follow, since they were not "told" or "instructed"?

Given that the subpoena itself contains language such as "YOU ARE COMMANDED" (sic), probably not, but I imagine Moxie asked the ACLU lawyers before making it public.

Given that the following sentence says "If you nonetheless plan to disclose the existence or nature of the subpoena, please contact the Special Agent identified above first".

I suspect it might not. I don't know why this additional information wasn't quoted by the parent comment.

And so, are you obligated to contact the "Special Agent" in the case the you do disclose the subpoena?

Not a lawyer but my inference is that this language establishes that you have foreknowledge that disclosure might interfere with the investigation -- so if you ignore these requests and disclose in a way which appears to adversely impact the investigation, you won't be able to claim that you didn't know

I mean, for me, the layman, my understand is that this sentence implies you are not strictly forbidden under severe penalty from disclosing, otherwise, as they have demonstrated, they're not above throwing the CAPITAL LETTERS at you.

I guess I interpreted it as a more perfunctory "please", but that's probably just a knee-jerk reaction on something being sent by a lawyer. Seeing it spelled out like it is here, it does seem more logical for it not to be a strict requirement.

I don’t have any experience with Homeland Security investigations but I know when the SEC begins major investigations they’ll often request the subject of the investigation voluntarily waive attorney-client privilege. Who on earth would do that? Well, just about everyone. Of course they can’t force a waiver of privilege but the implication is that things will go much better for you if you do. The investigation (and subsequent punishment) will be much less painful for you. I suspect there’s a similar implication lurking behind this polite ask as well.

That doesn't seem fair or just - not just "very" but "at all"...

Investigators (from regular cops all the way on up) do this all the time, and courts have ruled that it's legal. Why people continue to fall for it though is beyond me.

> But the post doesn't mention that at all. I wonder how much effort they had to spend, if any, to be able to publish this this time.

Indefinite gag orders aren't a good thing, but if there is an investigation and knowledge of that investigation can interfere with it then I can see why they would be "asked" not to publish it.

These asks should have time limits though, just like security disclosure. The only valid reason to keep it under covers would be just that: because it could interfere with an ongoing investigation.

Asking to not disclose inquiries while an investigation is ongoing, or "withing 12 months due to an ongoing criminal investigation" would have better optics.

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