Congressional Letter Puts Spotlight on Unenforceable Secrecy Demands in Federal Subpoenas

Overview

When federal law enforcement agencies issue subpoenas to companies for information about their customers, the subpoenas or cover letters often contain boilerplate nondisclosure language. This language generally directs companies not to notify those customers and implies that there may be legal consequences for doing so. But as two lawmakers recently called out in a formal letter to the U.S. Supreme Court and the U.S. Government Accountability Office (GAO), this boilerplate language may not carry the force of law.

On September 1, 2026, Senator Ron Wyden (D-OR) and Representative Pramila Jayapal (D-WA) wrote a letter to Chief Justice John G. Roberts and Orice W. Brown, the GAO Acting Comptroller General. The letter asked for an audit of how federal agencies use nondisclosure language in their subpoenas and requested that the Judicial Conference update subpoena templates to make recipients’ rights clearer. The lawmakers described the problem as “a pervasive, decades-long abuse of authority by federal law enforcement agencies.” Whether or not this inquiry produces reform, companies that receive subpoenas should understand the ground rules surrounding disclosure. They should also consider what growing congressional scrutiny of this practice may mean for their own response decisions.

When Can the Government Legally Require Subpoena Secrecy?

As the lawmakers acknowledge, under longstanding federal law, law enforcement agencies may compel companies to turn over customer records through administrative, grand jury, and trial subpoenas. None of these require a court’s prior approval in the way a traditional warrant does. Crucially, the letter argues, the recipients of these subpoenas—often third-party companies and service providers—retain a First Amendment right to notify their customers of the government’s demand. This allows the actual targets of the subpoena an opportunity to assert their own legal rights or challenge the demand in court.

If the government wants to legally impose silence, the letter notes, it must obtain a court-issued nondisclosure order or point to a specific statute that requires it, such as 18 U.S.C. § 1510(b)(2) (prohibiting employees and other agents of financial institutions from notifying customers of certain subpoenas for their records, or anyone else named in the subpoena) or 12 U.S.C. § 3420(b)(1) (restricting disclosure of certain grand jury subpoenas issued to financial institutions to any person named in the subpoena). In the case of grand jury subpoenas specifically, the letter points out that subpoena recipients and witnesses are not themselves covered by grand jury secrecy requirements specified in Federal Rule of Criminal Procedure 6(e)(2).

How Federal Agencies Have Used Boilerplate Language in Subpoenas to Pressure Silence

Despite this legal framework, the letter alleges that federal agencies routinely embed boilerplate nondisclosure language directly into subpoenas for customer data. This language directs recipients not to notify their customers and implies that speaking up could carry legal consequences. The letter documents this practice across agencies including the U.S. Department of Justice (DOJ), Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), and Drug Enforcement Administration (DEA). It further alleges that some agencies have softened their language from a command to a nominal “request” following court pushback. But the agencies have stopped well short of informing recipients when they have a right to speak about the subpoena.

The letter highlights two occasions on which federal courts took direct issue with this practice. In 2011, the Third Circuit agreed that the government’s practice of placing nondisclosure requests on all grand jury subpoenas was “not a good policy” and discouraged it going forward. United States v. Bryant, 655 F.3d 232, 239 n.4 (3d Cir. 2011). In 2015, Judge Raymond Dearie of the Eastern District of New York found that prosecutors had included a direct command on the face of grand jury subpoenas ordering civilian recipients not to disclose the subpoena’s existence. The court held this violated Federal Rule of Criminal Procedure 6(e)(2) and warned that continued violations “could well warrant severe remedies.” United States v. Gigliotti, No. 15-cr-204 (E.D.N.Y. 2015).

What Could Change: Proposed Audits and Template Reforms

Senator Wyden and Representative Jayapal asked the GAO to conduct a comprehensive audit of DOJ, DHS, and their component agencies. The audit would evaluate internal agency operations and issue formal recommendations on the scope and use of nondisclosure language in subpoenas. They also asked the Judicial Conference to modify standard subpoena templates. Specifically, the modified templates would include a clear disclosure that the subpoena does not impose an obligation of secrecy on the recipient unless a court order or statute specifically requires it. Although there is no current proposal for legislative reform, that also remains a theoretical possibility.

What Companies Should Consider

Until the government acts to curb these practices, here are some steps companies should consider:

• Treat boilerplate nondisclosure language with caution. The secrecy demands that accompany federal subpoenas may not be the same as a court-issued or statutory nondisclosure order. Unless a court has issued such an order or a specific statute requires silence, subpoena recipients may retain a First Amendment right to speak about the subpoena. This includes notifying their customers where their data is sought. When in doubt, companies should consult counsel.
• Review customer notification policies. For most industries, Congress has not mandated or prohibited customer notification following receipt of a subpoena. Whether and when to notify customers of government demands is a legal, policy, and on occasion, a reputational risk question. Companies likely to face this issue should consider it before a subpoena arrives.
• Consider the broader strategic implications. While the letter focuses on subpoenas for customer data, the concerns it raises apply more broadly. Scrutiny of how companies respond to government demands continues to grow. Subpoena response decisions—including decisions about customer notification or public statements—may face greater after-the-fact examination. These decisions should be part of any company's overall response strategy. Even where disclosure is legally permissible, it is important to consider the consequences of such disclosure (or nondisclosure), including on the company’s reputation and its relationship with the investigating agency.
• Watch for further developments. If the GAO proceeds with the requested audit, its recommendations could drive revised agency policies on nondisclosure requests related to subpoenas. Judicial Conference action on subpoena templates could also affect how those forms communicate recipients’ rights. Either outcome could meaningfully change the legal landscape for companies that receive these demands.

Conclusion

As the lawmakers’ letter makes clear, federal agencies have used boilerplate nondisclosure language to pressure subpoena recipients into silence. They have done so despite judicial warnings from multiple courts that the practice lacks legal grounding. The lawmakers call on two of the most significant institutions in the federal legal system to take steps to “ensure that agencies do not abuse their subpoena authorities at the expense of privacy and free speech rights.” Whether through a GAO audit, Judicial Conference template reform, or other measures, the current framework may soon see a significant overhaul. In the meantime, companies responding to federal subpoenas should ensure they are aware of their rights and options.