Google, Yahoo and Facebook filed amended requests today with the U.S. Foreign Intelligence Surveillance Court (FISC) reiterating their desire to publish numbers on requests for user data related to national security. Google, meanwhile, went a step further asking for an open, public hearing with the court so that the issue could be publicly debated.
The U.S. government prohibits companies from disclosing the number of requests received for user data under a number of national security statutes. All three have published transparency reports that describe a range for the total number of requests received and the number of users associated with those requests, but specifics on requests related to national security are not allowed to be published.
Google was the first to make such a public request, when in June it filed a motion days after the first of Edward Snowden’s revelations about the NSA’s data collection practices under the Patriot Act and its PRISM program. Google cited media reports, pointing to articles in the Guardian UK newspaper and The Washington Post alleging that the NSA had “direct access” to Google data. Google immediately denied these claims and petitioned FISC and Attorney General Eric Holder for permission to publish national security data.
Citing legal precedent, Google wants public access to the proceedings it said, in addition to being able to publish the total number of compulsory national security-related requests and the number of users or accounts associated with those requests.
“A public argument would be consistent with this Court’s rules, which state that ‘a hearing in a non-adversarial matter must be ex parte and conducted within the Court’s secure facility, suggesting by negative implication, that a hearing in an adversarial matter shall be open,” the motion says.
On Aug. 29, Director of National Intelligence James Clapper announced that the government would release an annual statement describing the total number of national security orders and the number of targets affected by those orders. Those numbers would include probably cause orders under the Foreign Intelligence Surveillance Act (FISA), in particular Section 702 of the Act, as well as FISA business records and National Security Letters.
Google said Clapper’s announcement did not translate into enough transparency for its users.
“It fails to inform [users] of the true extent of demands placed on Google by the government and in any event, such publication is not a replacement for Google’s right to speak truthfully about the process it receives,” today’s motion said.
Google maintains its position that the allegations the intelligence community has access to user data with or without a warrant are hurting its business.
“Google must respond to such claims with more than generalities,” the motion said. “Moreover, these are matters of significant weight and importance, and transparency is critical to advancing public debate in a thoughtful and democratic manner.”
Today’s amended motions from Google, Yahoo and Facebook came after negotiations between the companies and the government reached an impasse, Google said; the government ordered amended motions be filed by today.
Yahoo, which filed its first transparency report last week, made the same request of the FISA court and urged that the U.S. should lead the world in transparency with regard to respect of civil liberties and human rights.
“We believe that the U.S. Government’s important responsibility to protect public safety can be carried out without precluding Internet companies from sharing the number of national security requests they may receive,” Yahoo General Counsel Ron Bell wrote. “Ultimately, withholding such information breeds mistrust and suspicion—both of the United States and of companies that must comply with government legal directives.”
Facebook General Counsel Colin Stretch echoed Bell’s remarks.
“The actions and statements of the U.S. government have not adequately addressed the concerns of people around the world about whether their information is safe and secure with Internet companies,” he wrote. “We believe there is more information that the public deserves to know, and that would help foster an informed debate about whether government security programs adequately balance privacy interests when attempting to keep the public safe.”
Facebook published its first transparency report on Aug. 27.
