In the United States, 68 percent of requests for Google users' information come in the form of subpoenas, which do not require a judge's approval.
Promontory also declined to address it, but a spokesman acknowledged that the firm "from time to time receives document requests in the form of subpoenas related to client activities".
But the form of the subpoena aside, it appears from Brown's own statement that, prior to the issue of the subpoena in question, a subpoena duces tecum had been directed to and served upon him personally, commanding him to produce the same documents, and that in answer thereto he had appeared before the grand jury with them.
"Thus, judicial intervention in the form of a subpoena is necessary," the prosecution argues.
Electronic Frontier Foundation lawyer Mark Rumold called it a "devolution" of a form of administrative subpoena issued by FBI for customer records.
Perhaps most worryingly, 68% of requests, more than two in every three, came in the form of a subpoena, while only 22% came through search warrants.
The ruling by Judge Susan Illston of the Northern District of California would bar the issuance of national security letters — a form of administrative subpoena — on constitutional grounds.
There are National Security Letters, an aggressive form of administrative subpoena that allows US authorities to secretly obtain almost any electronic record – complete with a gag order making it illegal for the target of the subpoena to tell anyone about it.
Every six months, companies can now publish reports listing how many thousand National Security Letters, a form of nonjudicial subpoena from the FBI, they receive, as well as how many customer accounts those letters affect, also listed by the thousand.
Obama has instructed Holder to reform the use of national security letters — a form of administrative subpoena used to obtain business and other records — so that the traditional gag order that accompanies them does not remain in place indefinitely.
