Google and Microsoft have locked arms with a number of civil liberties advocates in filing a brief with the secret Foreign Intelligence Surveillance Court hoping to lift a gag order preventing the two tech giants from releasing information on their role in the NSA’s surveillance activities.
To date, Google and Microsoft have been prohibited from sharing meaningful details on their cooperation with the government regarding requests they get for user data under the Foreign Intelligence Surveillance Act (FISA). A month ago, Google asked the FISA court for permission to publish the number of FISA requests it receives, saying that inaccurate media reports about the company’s involvement in PRISM damaged its reputation.
In its June motion, Google said it would publish the total number of national security requests it receives under FISA, in ranges of 1,000; and the total number of accounts or users affected by the requests, also in increments of 1,000. The company says that the ability to publish this data is vital to its reputation and business, as well as to the establishment of a debate on these issues.
The amicus brief filed two days ago was written by the First Amendment Coalition, with contributions from the Electronic Frontier Foundation, the American Civil Liberties Union, the Center for Democracy and Technology and TechFreedom.
“A national conversation about the lawfulness of government surveillance programs cannot take place in the dark,” EFF Senior Staff Attorney Matt Zimmerman said in a statement. “At minimum, companies like Google and Microsoft should be able to publicly disclose aggregate information such as how many secret surveillance orders for their customers were received and the type of information sought. Other companies, similarly entrusted with sensitive customer information, should be permitted to do the same.”
Google and Microsoft, in their transparency reports, publish data on the number of law enforcement requests it gets for user data and information on how many National Security Letters they received.
According to the brief, Google and Microsoft wish to disclose the number of FISA requests each has received and the number of user accounts sought via those requests. The companies contend that it is within their First Amendment rights to publish this information and both said they would sanitize the data so that users would not be able to infer whether they were targeted.
The brief points at previous court rulings where, even in matters of national security and espionage, the court maintained the sanctity of the First Amendment above all.
“Even scholars who have advanced the most restrictive view of the scope of the First Amendment by questioning whether it should protect artistic speech, have strongly affirmed that speech about governmental interaction with the citizenry is at the heart of what the Amendment protects,” the brief said.
The advocates contend that any disclosure made by Google and Microsoft would not threaten national security and that their desire to disclose this information falls in line with the companies’ ability to describe their interaction with the government on a subject of national debate, the NSA’s spying and data collection under sections 215 of the PATRIOT Act and 702 of FISA.
“The speech at issue here is expression about the speakers’ own actions, actions taken under government compulsion for which the speakers have been publicly criticized and that they now seek to explain and to defend,” the brief said. “Banning such speech strikes at the heart of the First Amendment’s preservation of speech. It is antithetical to the First Amendment to restrict the ability of a person to mount a defense against public accusations by responding with speech setting forth the truth about one’s own actions.”
