privacy
Is there precedent of secret subpoena that compels government access?
<p>Under what guise of law, would state actors (UK, US, etc.) be able to issue secret (unpublished) subpoenas that require industry / utilities to provide government <strong>access</strong> to their systems?  Examples of <strong>access</strong> include <a href="https://www.wsj.com/articles/attorney-general-calls-on-facebook-to-limit-message-encryption-plans-11570130636?mod=hp_lead_pos2" rel="nofollow noreferrer">phone companies, which were forced during the Clinton administration to build digital networks that government agents could tap.</a></p>

<p>The modern day version of "tapping" is dismantling end to end encryption of messaging systems such as Facebook or WhatsApp</p>

<p>In the UK and USA (and I imagine other jurisdictions) there have been laws that explicitly provide for orders obliging entities to (A) provide access or information and (B) keep the order secret.</p>

<p>For example, in the USA the Stored Communications Act, Fair Credit Reporting Act and Right to Financial Privacy Act authorise the FBI to issue National Security Letters (<a href="https://en.wikipedia.org/wiki/National_security_letter" rel="nofollow noreferrer">Wikipedia</a>, <a href="https://www.eff.org/issues/national-security-letters" rel="nofollow noreferrer">EFF</a>, <a href="https://epic.org/privacy/nsl/" rel="nofollow noreferrer">EPIC</a>, <a href="https://www.lawfareblog.com/topic/national-security-letters" rel="nofollow noreferrer">Lawfare</a>). These are an administrative subpoena, without prior approval from a judge, for meta-information (e.g. phone numbers dialed or email recipients addressed but not the content) of communications relevant to national security investigations. They typically contain a non-disclosure requirement prohibiting the recipient of the NSL from disclosing its existence or the FBI's demands. There have been challenges on First Amendment grounds to the non-disclosure aspect but, so far as I'm aware, they have all ultimately failed. Some of their non-disclosure requirements may eventually expire under other laws.</p>

<p>In response, so-called 'warrant canaries' (<a href="https://en.wikipedia.org/wiki/Warrant_canary" rel="nofollow noreferrer">Wikipedia</a>) have been developed (and gone a bit further than <a href="https://web.archive.org/web/20131103121048/http:/groups.yahoo.com/neo/groups/cypherpunks-lne-archive/conversations/topics/5869" rel="nofollow noreferrer">the original idea</a>) - these are intended to allow entities to relatively passively warn of such an order having been received if not the detail of the order. However, they can be legally risky in that they might be seen by a court as trying to circumvent the non-disclosure requirement and therefore breaking it.</p>

<h2><a href="https://en.wikipedia.org/wiki/Everything_which_is_not_forbidden_is_allowed" rel="nofollow noreferrer">Everything which is not forbidden is allowed</a></h2>

<p>Governments can <em>ask</em> industry/utilities to do something and they can <em>choose</em> to comply. Unless the law prohibits the asking or the doing this is totally legal.</p>

<p>Now, laws can't be secret - acts of the legislature and court judgments have to be published or they are not the law. However, administration of the law by the executive can have secret elements - the police can act undercover, wiretaps (with a warrant) are not publicized etc.</p>

<p>This is all sensible and proper that some things can be done in secret and other things must be done in public, however, it does mean that the law lags behind the world. You can't have laws about areoplanes before there are areoplanes and you can't regulate end-to-end encryption before there is end-to-end encryption. In the gap between initiation and regulation or litigation there is a legal grey area where no one is sure what's permitted and what's forbidden.</p>
