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    Prior Restraints and Digital Surveillance: The Constitutionality of Gag Orders Issued under the Stored Communications Act

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    Author
    Sumar, Al-Amyn
    
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    URI
    http://hdl.handle.net/20.500.13051/7825
    Abstract
    The First Amendment's prohibition on prior restraints on speech is generally understood to be near-absolute. The doctrine permits prior restraints in only a handful of circumstances, and tends to require compelling evidence of their necessity. The focus of this Article is the source of an unexpected but important challenge to this doctrine: government surveillance in the digital age. Recent litigation about the constitutionality of the Stored Communications Act (SCA) highlights that challenge. The SCA authorizes the government both to obtain a person's stored internet communications from a service provider and to seek a gag order preventing the provider from even notifying the person of that fact. Though the government did not ultimately prevail in the litigation, the case provides a renewed opportunity to consider the tension between prior restraint doctrine and the government's digital surveillance efforts.
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