5 ms·

> by definition, a subpoena is a document authorized by someone other than a judge Uhm, am I misunderstanding what you wrote, because that is definitely not tr

> by definition, a subpoena is a document authorized by someone other than a judge Uhm, am I misunderstanding what you wrote, because that is definitely not true. Subpoenas require an officer of the court by definition (in the US anyway), which can be a judge, a court clerk, or even lawyers in some jurisdictions.

tptacek 3y ago
Can a court clerk or a lawyer unilaterally create a nondisclosure requirement? It is not generally that case that a lawyer, absent a judge, can send you a document you're not allowed to disclose (though certainly lots of C&D's try to suggest otherwise). I'm sure the NDA stuff here is ironclad! I'm just curious what the mechanism is.
- jsjohnst 3y ago
  > Can a court clerk or a lawyer unilaterally create a nondisclosure requirement? If they are acting as an officer of the court, which they’d need to be to sign off on a subpoena, I believe the answer is yes. The mechanism is called a “gag order”.
  - tptacek 3y ago
    For subpoenas authorized under the Stored Communications Act, there's statutory authorization for DOJ to request time-limited NDAs, which makes me wonder if there needs to be explicit authorization for other kinds of subpoenas. This is the kind of noodling I'm doing here; I'm not trying to message-board my way to a first-principles argument that the NDA was bogus. :)
    - jacquesm 3y ago
      I don't follow you, which NDA?
    - lazide 3y ago
      It's very common for a subpeona related to an ongoing investigation to include a gag order. For instance, if someone is investigating someone for a crime, and requests that users search history, the last thing they want is for Google et al to alert the user that this happened, as they may not be ready to arrest them yet and the target would flee. Same with wiretapping orders, or frankly a subpeona for pretty much anything from a third party.
vdqtp3 3y ago
> Subpoenas require an officer of the court That's not entirely true. https://en.wikipedia.org/wiki/Administrative_subpoena https://en.wikipedia.org/wiki/Administrative_subpoena Local organizations have come up with equivalents, although there is less (no?) statutory support for that.
- jsjohnst 3y ago
  > Subpoenas require an officer of the court … or an agent working for the government I left off the second part after the ellipses because it’s not relevant to the current discussion and because there’s constitutional challenges against them even when federally issued, as your link calls out. I didn’t want us to tangent off needlessly. The law is a messy place, lots to find and hate.

tptacek 3y ago

Can a court clerk or a lawyer unilaterally create a nondisclosure requirement? It is not generally that case that a lawyer, absent a judge, can send you a document you're not allowed to disclose (though certainly lots of C&D's try to suggest otherwise). I'm sure the NDA stuff here is ironclad! I'm just curious what the mechanism is.

jsjohnst 3y ago
> Can a court clerk or a lawyer unilaterally create a nondisclosure requirement? If they are acting as an officer of the court, which they’d need to be to sign off on a subpoena, I believe the answer is yes. The mechanism is called a “gag order”.
- tptacek 3y ago
  For subpoenas authorized under the Stored Communications Act, there's statutory authorization for DOJ to request time-limited NDAs, which makes me wonder if there needs to be explicit authorization for other kinds of subpoenas. This is the kind of noodling I'm doing here; I'm not trying to message-board my way to a first-principles argument that the NDA was bogus. :)
  - jacquesm 3y ago
    I don't follow you, which NDA?
  - lazide 3y ago
    It's very common for a subpeona related to an ongoing investigation to include a gag order. For instance, if someone is investigating someone for a crime, and requests that users search history, the last thing they want is for Google et al to alert the user that this happened, as they may not be ready to arrest them yet and the target would flee. Same with wiretapping orders, or frankly a subpeona for pretty much anything from a third party.

vdqtp3 3y ago

> Subpoenas require an officer of the court That's not entirely true. https://en.wikipedia.org/wiki/Administrative_subpoena https://en.wikipedia.org/wiki/Administrative_subpoena Local organizations have come up with equivalents, although there is less (no?) statutory support for that.

jsjohnst 3y ago
> Subpoenas require an officer of the court … or an agent working for the government I left off the second part after the ellipses because it’s not relevant to the current discussion and because there’s constitutional challenges against them even when federally issued, as your link calls out. I didn’t want us to tangent off needlessly. The law is a messy place, lots to find and hate.