FBI Gag Orders: FBI Secret Subpoenas To Collect User Data From Tech Companies Dropped 5 Percent In 2016

The FBI is reducing its reliance on secret subpoenas to collect user data from technology companies, dropping its requests by more than 5 percent in 2016, a government report showed Tuesday.

The figures, published by the Office of the Director of National Intelligence, showed the FBI sent 12,150 national security letters — effectively secret subpoenas used to gather user information from businesses — down from 12,870 last year.

Read: Adobe vs. US Government: Adobe Wins Challenge Of Government Gag Orders For User Data Requests

The report did not provide any reason for the decrease though it is not necessarily a surprise as the FBI has been shrinking its use of the letters relatively consistently since the practice peaked with 56,507 requests in 2004.

The decrease in usage of the security letters coincides with an increase in scrutiny of the practice, which amounts to a warrantless subpoena that does not require the agency get the approval of a court.

The letters can be used to demand the phone and email records of an individual, as well as IP addresses associated with the user and other electronic records, including browsing history and web records — though it cannot access the contents of direct communications without a warrant.

While the FBI typically uses the letters to compel technology companies and phone and internet service providers to hand over information from their customers, they also often come with a gag order that prevents the company from informing the subject their information has been accessed by the government.

Read: Microsoft Vs. U.S. Government: Company Wins The Right To Sue On Behalf Of Customers Over Secrecy Orders

Since the FBI’s attempt to silently access information through tech companies has become more public — in part thanks to the revelations brought to light by former National Security Agency contractor Edward Snowden — tech companies have shown more willingness to fight the orders.

Several recent efforts to break through the secrecy requirements of the gag orders have proved successful. Earlier this year, Microsoft won the right to continue a lawsuit against the U.S. Department of Justice on behalf of its customers over ongoing gag orders that effectively prevented the company from ever informing a user of a government investigation.

Adobe also succeeded in a challenge over an indefinite gag order, which a federal judge determined was unnecessary and overreaching.

Twitter has been an outspoken opponent of the secret subpoenas as well, calling it an "Orwellian situation." Twitter has had an adversarial relationship with the government recently, which has included a suit over a government demand for the social network to reveal the identity of an anonymous user who had criticized the president.

Despite these victories, tech companies have not been able to push back entirely against the warrantless requests. Facebook attempted to fight a bulk data request issued for a 2013 fraud investigation, but a New York court ruled the company could not appeal the requests.