America’s Secret Spy Law: The Gag Orders Forcing U.S. Tech to Betray Itself

Image Credit, Sammy Sander

Most Americans have never heard of it, and if they have, it’s usually in whispers buried beneath layers of redacted legal documents, obscure judicial rulings, or scattered leaks. Yet for years, U.S. tech employees—engineers, sysadmins, software developers—have been compelled by their own government to quietly insert backdoors, siphon data, or hand over private customer information, all under the shadow of a powerful, hidden legal weapon: the Gag Order.

This secretive legal mechanism does not have a tidy name in public law books, but its power lies in a mixture of national security letters (NSLs), secret subpoenas under the Foreign Intelligence Surveillance Act (FISA), Section 702 of the FISA Amendments Act, and the controversial USA PATRIOT Act. At the core of this is one defining trait: employees and companies forced to comply are also legally forbidden from telling anyone they’ve been compelled. This silencing mechanism is what has become colloquially known as a Gag Order, and it functions like a domestic Trojan horse.

The roots of gag orders go back decades, but their most aggressive use began after the September 11, 2001 attacks. In the name of national security, the U.S. government ramped up its surveillance apparatus dramatically. The Patriot Act, passed just weeks after 9/11, gave federal agencies sweeping new powers to collect data, compel cooperation, and do so in secrecy.

Section 215 of the Patriot Act, for example, allowed the FBI to demand “any tangible things” for investigations related to terrorism or clandestine intelligence activities, with almost no transparency. This law came bundled with gag orders prohibiting recipients from ever disclosing they had received such a demand. Similarly, the FISA Amendments Act of 2008 (particularly Section 702) enabled the NSA and FBI to conduct warrantless surveillance on foreign targets using U.S. tech infrastructure—often incidentally sweeping up Americans’ communications in the process.

But what makes gag orders particularly sinister is how they are often used not just to access data, but to force employees to modify software, install surveillance tools, or even create vulnerabilities—essentially, backdoors—that the government can later exploit.

These directives are usually issued in secret through FISA courts, which operate behind closed doors with no public oversight. Companies receiving such orders can be forbidden from even telling their legal teams, let alone their users or the public.

The Snowden revelations in 2013 cracked the silence open, albeit partially. One of the most shocking programs exposed was PRISM, under which the NSA was directly collecting data from major tech companies like Google, Facebook, Microsoft, and Apple. Although these companies initially denied involvement, leaked documents revealed that data collection wasn’t merely passive—it sometimes required cooperation from within.

In one instance, Microsoft reportedly worked with the NSA to allow access to encrypted chats via Outlook.com. Apple, meanwhile, was forced under legal compulsion to comply with certain information requests but was barred from discussing the nature or extent of its cooperation.

In 2014, Yahoo fought back against a secret FISA order demanding mass user data. The court ruled against Yahoo and imposed a gag order that lasted for years. When it was finally lifted (partially), the company revealed it had been threatened with a $250,000 daily fine if it refused to comply.

Perhaps the most alarming example came in 2016, when it was revealed that the FBI had served Apple with a secret court order demanding that the company create a special version of iOS that would allow the government to unlock a suspect’s iPhone. Apple refused, with CEO Tim Cook stating that compliance would set a “dangerous precedent.” The FBI ultimately dropped the case after finding an alternative method to unlock the phone, but the threat was clear: the government was willing to compel companies to create tools that could be weaponized against users.

What makes these gag orders especially contentious is the way the U.S. government simultaneously accuses foreign governments—most notably China—of doing precisely the same thing.

Take Huawei, the Chinese telecom giant banned from U.S. infrastructure on the grounds that it might include “backdoors” in its hardware. The U.S. has pressured allies around the world to blacklist Huawei, warning of potential national security risks. In 2020, former U.S. Attorney General William Barr likened companies like Huawei and ZTE to arms of the Chinese Communist Party.

Or consider the scrutiny on TikTok. U.S. lawmakers have argued that because ByteDance, TikTok’s parent company, is based in China, the app could be forced to secretly cooperate with Chinese intelligence services. A key concern is that Chinese national security laws allow the government to compel any domestic company to assist in surveillance—a mirror image of what U.S. authorities themselves do domestically under gag orders.

The U.S. warns the world about China’s legal frameworks, while it quietly relies on similar mechanisms to exploit its own tech ecosystem.

There’s a deep ethical problem at play here. Employees who are served with a gag order—sometimes just mid-level engineers or IT professionals—may be forced to betray their users, their employer, and their own values, all under the weight of federal secrecy laws. Refusal to comply could mean jail time, ruinous fines, or both.

It creates a chilling effect in the tech industry. Developers and companies can’t promise genuine security if they themselves don’t know whether hidden backdoors have been implemented by a team member acting under a secret order. This undermines trust—not just in specific companies but in the integrity of U.S.-built technology as a whole.

International companies and governments have taken notice. In response to revelations about U.S. surveillance programs, Germany moved to stop using U.S.-based cloud services for sensitive data. Brazil passed legislation requiring that certain data be stored on local servers. The European Union has pushed forward with its own data sovereignty laws under the GDPR and its Digital Markets Act.

Over the past decade, there have been a handful of legal challenges aimed at ending or at least limiting gag orders. The USA FREEDOM Act of 2015 attempted to rein in some aspects of the Patriot Act, including requiring that some gag orders be subject to periodic judicial review. Still, the overall framework remains largely intact.

In 2017, a federal judge ruled that perpetual gag orders—those that never expire—were unconstitutional. Yet many gag orders still remain in place for years, and most are never publicly acknowledged. Some recipients, like Microsoft, have continued to push for more transparency, launching legal campaigns to reveal just how often they’re being gagged.

But transparency is the enemy of this system. The more we learn, the less plausible it becomes to defend the practice as purely about national security.

The United States has spent years building an architecture of digital secrecy, quietly compelling its own citizens and companies to create weaknesses in the systems we all rely on—then hiding those actions behind a wall of gag orders. The irony is bitter: as it warns the world about the threat of foreign surveillance, it has normalized domestic mechanisms that are equally invasive and far more opaque.

We live in a time when encryption, data sovereignty, and privacy are not just tech issues—they’re matters of democratic integrity. And until gag orders and secret surveillance mandates are publicly debated, reformed, or abolished, America’s moral authority on these matters remains deeply compromised.