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When companies receive legal process from law enforcement, such as subpoenas or warrants, for personal information about their users or customers, the first thing they need to do is review each request to confirm it satisfies applicable laws, including privacy and data protection regulations. If a request asks for too much information, companies typically try to narrow it, and in some cases will object to producing any information at all. Then, they must decide whether to notify the individual(s) whose information has been requested. 

Maintaining control over user notifications presents a multitude of challenges. First, companies must navigate a complex web of legal requirements and jurisdictional differences, ensuring compliance with varying local, state, and federal laws. Additionally, balancing transparency with user privacy is crucial, as premature or unauthorized notifications could compromise ongoing investigations or violate legal directives. The need for robust and secure systems to manage these notifications is critical, as any breach could lead to unauthorized access to sensitive information. Furthermore, companies must often deal with the ethical implications of user trust, ensuring that their notification policies align with their commitment to protecting user rights while fulfilling their legal obligations. This intricate interplay of legal, technical, and ethical considerations makes the task of managing user notifications both demanding and essential.

In 2011, the Electronic Frontier Foundation (EFF) published its first “Who Has Your Back,” report which evaluated companies' commitments to protecting users when government agencies (including law enforcement) ask for personal data. In their initial report, the EFF evaluated 13 of the largest internet companies, at the time, against six criteria: 

• Do they require a warrant before they’ll release user content?
• Do they inform users of government data requests?
• Do they publish transparency reports?
• Do they publish law enforcement guidelines?
• Do they fight for users’ privacy rights in court?
• Do they fight for users’ privacy rights before Congress?

The initial report was a wake-up call for many of the companies who, until that point, had never made a public commitment in these areas. For the next decade, public pressure from the EFF and resulting press coverage helped privacy, security, Trust & Safety, and law enforcement response teams advocate internally for greater transparency and consistent decision-making when responding to requests from law enforcement. Over time, the number of companies profiled in the EFF report grew, specific industries were highlighted and the criteria evolved. The last report was published in 2019 with a different focus: content moderation policies and transparency of online platforms. 

Notification Before Disclosure

In privacy policies and law enforcement guidelines, many companies reserve the right to notify their users if their information is impacted by a law enforcement request unless prohibited by law or in exceptional circumstances, such as child exploitation cases, emergencies, or when notice would be counterproductive. In most cases, companies that notify users do so before the disclosure. 

This practice informs users about potential privacy intrusions so they can take necessary actions, such as seeking legal counsel or understanding the scope and implications of the request. By doing so, companies demonstrate their commitment to protecting user rights and fostering an open relationship with people who use their services. Additionally, such notifications can provide users with peace of mind, knowing that their service providers are proactive in maintaining ethical standards and prioritizing user consent whenever possible.

Delayed Notification

Some requests from law enforcement prohibit user notification to preserve the integrity of ongoing investigations. If companies were allowed to notify users, it could lead to the destruction of evidence, flight from jurisdiction, or other actions that might obstruct justice. Maintaining confidentiality can also help protect the safety of law enforcement personnel and potential witnesses. By ensuring that law enforcement requests remain undisclosed, authorities can conduct more effective investigations and enhance public safety, balancing the necessity of privacy with the imperative of security.

Sometimes notification isn’t prohibited entirely, but is delayed until a statutory or court-ordered non-disclosure order (NDO) period has expired. For security reasons, some companies don’t send notifications to the user if their account is disabled or hacked. 

Transparency Reports: Delayed, Aggregated Notification

Many companies share the aggregated number and types of requests they receive in annual transparency reports. In an era where data privacy is a significant concern, users want to know how their personal information is being handled and under what circumstances it might be shared with external entities, such as law enforcement. By publishing transparency reports, companies demonstrate their commitment to protecting user privacy and holding themselves accountable, fostering a sense of security and trust among their users.

Transparency reports also provide a measure of accountability and oversight. They offer a detailed account of the number and types of requests received, how many of these were complied with, and the legal basis for such requests. This level of detail allows stakeholders, including users, advocacy groups, and policymakers, to scrutinize the practices of both the company and the requesting law enforcement agencies. It ensures that the requests are being made and handled appropriately and that any potential misuse of power can be identified and addressed. This scrutiny can drive improvements in both corporate practices and public policy regarding data privacy and law enforcement access.

Lastly, these reports play a vital role in the broader conversation about data privacy and digital rights. As the Trust and Safety Professional Association notes on its website, by openly sharing information about law enforcement requests, companies contribute to a greater understanding of the landscape of government surveillance and the implications for individual privacy. This transparency can inform public debate, influence legislation, and inspire other companies to adopt similar practices. 

Kodex makes it easy to create transparency reports for public disclosure and internal auditing. We support global regulatory requirements for reporting as well as customized reports based on real-time data about every request received. With Kodex you can quickly and confidently publish accurate reports for internal decision-makers and external stakeholders. 

Harmonizing Transparency and Compliance

Balancing transparency with legal obligations is inherently challenging. Companies strive to build trust with their users by being open about how their data is handled, but they must also comply with lawful requests that may require confidentiality. Navigating this fine line requires careful consideration and tools that can enforce a nuanced approach.

One of the primary challenges companies face in managing user notifications is the sheer volume and complexity of legal requests that they receive. Each request may come from different jurisdictions, each with its own set of regulations and confidentiality requirements. Additionally, the language used in these requests can vary significantly, making it difficult to standardize or automate the process of identifying which ones include NDOs.

Another factor is the potential for human error. With numerous employees handling data requests, there's always a risk that a request could be misinterpreted or mishandled, leading to unintentional notification of users when it is prohibited or violating your own privacy policies by not notifying users when you promised you would. Implementing comprehensive training and clear protocols can mitigate this risk, but it cannot eliminate it entirely.

Kodex’s secure portal makes it easy for law enforcement to indicate confidentiality requirements upfront in their initial request. On the flip side, companies can use Kodex to track and enforce immediate, delayed, or prohibited user notifications.   

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