Google has petitioned a secret U.S. national-security court to relax restrictions on the information the tech giant can reveal about government data requests, claiming such restrictions violate the company’s right to free speech under the First Amendment. Google’s motion, filed on Tuesday with the Foreign Intelligence Surveillance Court, is the tech giant’s latest attempt to address recent media reports that suggested it gives the National Security Agency (NSA) unfettered or “direct” access to user data.
Google and other large Internet companies, including Apple, Facebook, Yahoo and Microsoft, have come under intense scrutiny following reports that the NSA uses a classified U.S. intelligence system called Prism to examine data — including e-mails, videos and online chats — that it collects via requests made under the Foreign Intelligence Surveillance Act (FISA). Following those reports, the tech giants have vigorously pushed back against the notion that they allow the government unfettered or “direct” access to their servers.
In its motion, Google says its “reputation and business has been harmed by the false or misleading reports in the media.” Specifically, the tech giant referred to reports in the Guardian and the Washington Post that suggested that the NSA’s Prism system allows the federal government to tap directly into the company’s servers. Google has strenuously objected to those reports — which appear to have been based on a misreading of leaked NSA Prism slides — but the disclosures have nevertheless sparked a debate about the role of U.S. Internet companies in national-security investigations.
Last week, Google asked U.S. Attorney General Eric Holder and FBI Director Robert Mueller for permission to publish “aggregate numbers of national-security requests, including FISA disclosures — in terms of both the number we receive and their scope.” Google is currently prohibited by a government gag order from even acknowledging that it receives classified FISA requests. In a remarkable footnote to its FISA court motion, Google points out that it can’t even confirm or deny that is has received FISA court orders.
Google has been pressing the feds to allow the company to break out FISA requests separately from standard law-enforcement requests, but was stymied, prompting it to take its case directly to the FISA court. As such, Google’s motion represents the most dramatic action taken by a U.S. technology company to increase the transparency of government data requests since the NSA snooping controversy erupted. The tech giant argues that it has a First Amendment right to publish a range of the total number of FISA requests and the number of users or accounts they cover.
Kurt Opsahl, a senior staff attorney at the Electronic Frontier Foundation, a digital-rights group focused on civil liberties, free speech and privacy law, praised Google’s decision to petition the FISA court. “By filing this motion, Google is bringing into focus First Amendment concerns that arise from a gag order that prevents companies from speaking out on a program at the center of a national and international debate,” Opsahl says.
In its motion, Google is asking the FISA court for permission to publish aggregate numbers of national-security requests, including FISA disclosures, separately from standard law-enforcement requests. The tech giant’s filing highlights an interesting inconsistency in the U.S. position on FISA disclosures. According to Google’s motion, the Justice Department has not classified the aggregate number of national-security requests that companies receive. At the same time, the government insists that publication of such data is illegal.
Over the weekend, Facebook, Apple, Microsoft and Yahoo struck a deal with the government allowing them to disclose data on U.S. information requests, including FISA requests. But crucially, the companies were not permitted to separately break out the number of FISA requests, so we don’t know if they received 50 FISA requests, 500 or 5,000. As a result, some critics have described the deal as a “shell-game scam” that does little to advance the cause of transparency.
For Google, the arrangement struck by Facebook, Microsoft, Apple and Yahoo was not satisfactory. “Greater transparency is needed,” the tech giant said in a statement. “Lumping national-security requests together with criminal requests — as some companies have been permitted to do — would be a backward step for our users.” In its court filing, Google said: “These are matters of significant weight and importance, and transparency is critical to advancing public debate in a thoughtful and democratic manner.”
The secret FISA court is made up of 11 federal judges appointed by U.S. Supreme Court Chief Justice John Roberts, and has been criticized as a rubber stamp for classified U.S. national-security data requests. President Obama has defended the FISA program and the Prism system, and called for a public debate about the balance between national security and consumer privacy. But thus far, the Department of Justice has resisted calls by Google for permission to report the number of FISA requests it receives separately.