Google revealed on Wednesday that it responds to secret government requests for data by using file transfer protocol (FTP) and sometimes by simply handing a hard drive to investigators. What would happen, though, if Google or other companies flatly refused to comply with a secret government order?
They would be held in contempt secretly, pay secret fines, and executives might even serve secret jail time. A party that defies any federal court, including the Foreign Intelligence Surveillance Court, is held in contempt. The secretive nature of the court’s orders, though, would make the contempt trial challenging. First, it’s not clear that the FISA court is statutorily permitted to conduct a contempt hearing, so a federal district court might have to deal with the contemnor. The presiding court would have a few options to keep the substance of the trial secret. The most secretive—and perhaps most likely—method would be to conduct the trial under seal, meaning that all records of the trial’s existence would remain within the court itself. Entire trials have been held under seal in the past, although the situation is extremely rare, and the feuding litigants are generally the ones who ask for secrecy. The court could instead hold the part of the proceedings that would reveal classified information in camera, out of public view. Finally, the judge could attempt to tiptoe delicately around the substance of the order. She might refuse to allow the defendant to contest the validity of the order during the proceeding, limiting the trial to vague arguments over whether information was or was not delivered to the government. In any event, a jury would probably be unnecessary, as judges have the authority to unilaterally hold parties in contempt as long as they don’t try to jail the contemnor for more than six months.
The chances of any of these scenarios actually occurring are vanishingly slim, because companies have several opportunities to contest and modify secret FISA court orders before simply refusing to obey. They can challenge their legality to the FISA court itself, then appeal to the Foreign Intelligence Review Court and eventually move into the federal court system. If it did come to a contempt trial, the defendant company couldn’t legitimately complain that it had been denied an opportunity to make an argument.
The most likely punishment for defying the secret order would be a hefty fine, although the defendant might have a difficult time explaining the massive payment in the company’s public financial statements, especially if the contempt trial is conducted under seal. In all likelihood, the financials would say something opaque like, “The company was unable to meet the requirements set forth in government orders.” Fudging financials resulting from or in anticipation of litigation is a regular exercise for corporate accountants. Companies that take risky tax positions, for example, maintain reserves in the event they lose in an audit. Those accounts have to be described in vague terms to avoid baiting the IRS. Many settlements in civil trials also require the parties to keep the dollar value secret.
Imprisonment is an extremely remote but real possibility in such a contempt trial. It’s not entirely clear how the government would explain its move to jail an executive at a major telecommunications company. It’s possible the prisoner would be placed under special administrative measures, a set of constraints placed on terrorists, spies, and participants in organized crime that prevent them from communicating with the outside world. Neither the prisoners nor their attorneys may speak to the press.
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Explainer thanks David P. Fidler of the Indiana University Maurer School of Law and Stephen I. Vladeck of American University Washington College of Law, who blogs on national security law at Lawfare.