In a massive legal victory for free speech and government accountability, the D.C. Circuit Court of Appeals has unanimously ruled in X’s favor to limit the U.S. government’s ability to issue gag orders. These gag orders prevent X from notifying anyone, including its customers, that it has provided user information to the government in response to search warrants or subpoenas.
The case dates back to last year, when the government issued a subpoena to X demanding personal information about two former FBI agents—one of them Empower Oversight whistleblower Garret O’Boyle, who had testified to Congress about political bias and misconduct within the Bureau. Along with the subpoena came a blanket gag order that barred X from telling anyone about the request. X argued that the request could be retaliatory, given that their customers had blown the whistle to Congress about FBI misconduct.
“The DC Circuit’s ruling in this case is a step in the right direction, and we hope this, along with our own case, will lead to additional transparency and accountability when the government uses non-disclosure orders,” said Tristan Leavitt, president of Empower Oversight.
O’Boyle had blown the whistle on the FBI’s mistreatment of politically right-leaning groups. The FBI suspended his security clearance and paycheck during an indefinite suspension that is still in effect.
X argued that the gag order associated with the subpoena violated federal law. Now, the D.C. Circuit has unanimously agreed, striking down the blanket gag order and affirming that the government exceeded its authority. This means that social media platforms can now choose to notify the public when the government issues a subpoena for their data, unless there is a specific gag order that complies with the government’s obligation to justify a legitimate need for secrecy.
This ruling has wide-reaching impact for free speech and ensures transparency in the U.S. government’s efforts to perform surveillance against its citizens when pursuing data from private companies.
It also sets an important precedent for how whistleblowers—and the platforms that receive government demands—can challenge overreach in the future.
In a separate but related lawsuit, Empower Oversight sued the federal government in May 2024, after its founder, Jason Foster, learned that the Justice Department subpoenaed activity logs of the personal phone and email accounts of members of Congress and more than 40 staff members for congressional committees, including Foster. Each year for five years, the department secretly obtained gag orders from the court to prevent Google and other service providers from notifying their Legislative Branch customers that the providers had disclosed their records to the Executive Branch. At the time of the subpoena, Foster was Chairman Chuck Grassley’s chief investigator on the Senate Judiciary Committee.
The lawsuit, currently before the same court—U.S. Court of Appeals for the District of Columbia—seeks to unseal the Justice Department’s court filings that supposedly justified the 5 years of gag orders that prevented Google from notifying members of Congress and committee staff members that the Executive Branch had collected their communications data.