Thing is, can that gag order be imposed without a judge in the mix?
It seems reasonable to require lawful gag orders to be confirmed by the judicuary, not just issued at will by the executive.
So, there's another similar case mentioned here, but related to a Reason comment: with that one the government went and got a gag order from a judge.
In this case, they just sent that "preservation letter" and in the letter said not to alert the user: Techdirt (somewhat reasonably) is portraying that as "effectively" a gag order. They didn't go on even to issue a subpoena here, and so they also didn't go get an actual gag order, but it's something they've been known to do.
IANAL but if the executive (e.g. police) can charge someone with obstruction of justice, i'd imagine they could reasonably issue an unofficial gag order irrespective so long as there is something under investigation..
I don't know the operative law, regulation, or procedure here. Though gag orders are certainly imposed with some regularity in investigations and legal proceedings.
> where an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury subpoena is obtained, delay the notification required under section 2703(b) of this title for a period not to exceed ninety days upon the execution of a written certification of a supervisory official that there is reason to believe that notification of the existence of the subpoena may have an adverse result described in paragraph (2) of this subsection.
This would seem to sync up with what the story said:
> With help from Ken, we soon received a "preservation letter" demanding that we preserve for a period of 90 days "any and all records and other evidence, [...] In addition, the letter effectively gagged us, saying that we were not to disclose the existence of the letter "in any manner that could alert the user" of the account.
What would have happened had they not complied?