Tech Titans Poised for Showdown With Justice Department Over NSA

The Justice Department argues that greater NSA data-request transparency would harm national security

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NSA / Reuters

The National Security Agency headquarters in Fort Meade, Md.

The largest Internet companies in the U.S. are preparing for a showdown with the U.S. government over their campaign to be more transparent about national-security-data requests. Google, Microsoft, Facebook, Yahoo and LinkedIn have until Oct. 21 to file a brief with the Foreign Intelligence Surveillance Court (FISC) after the Department of Justice formally opposed their request to disclose statistics about the nature and scope of government requests made under the Foreign Intelligence Surveillance Act (FISA).

The impending FISC showdown comes as U.S. lawmakers are weighing two bills that would give the companies the right to publish basic statistics about the government’s national-security-data demands. Since the initial revelations about the National Security Agency’s (NSA) surveillance programs were published in June — thanks to documents leaked by former NSA contractor Edward Snowden — the tech titans have been waging a battle to be more transparent about such data requests in an effort to demonstrate that they are not serving as NSA stooges.

The companies have repeatedly argued that their inability to be more transparent with the public undermines user trust, which in turn could have adverse consequences for their businesses. The tech titans’ transparency battle was prompted by revelations about a classified system called Prism, which the NSA uses to examine data — including e-mails, videos and online chats — that it obtains from the companies under requests authorized by Section 702 of the 2008 Foreign Intelligence Surveillance Act Amendments Act. The tech giants are currently prohibited from revealing anything about such requests, because FISA requests are classified top secret.

(MORE: AT&T and Verizon Stay Silent About NSA Internet Snooping)

Last month, the tech titans filed briefs with the FISC requesting permission to be more transparent about such data requests. Last week, the Justice Department responded with its own brief, in which it formally objected to the companies’ request, arguing that such data disclosures would pose a risk to national security. “Such information would be invaluable to our adversaries, who could thereby derive a clear picture of where the government’s surveillance efforts are directed and how its surveillance activities change over time,” the Justice Department said. “If our adversaries know which platforms the government does not surveil, they can communicate over those platforms when, for example, planning a terrorist attack or the theft of state secrets.”

The tech titans have argued that the government’s data-disclosure restrictions violate their right to free speech under the First Amendment, but the Justice Department disputed that claim in its brief. “Contrary to the companies’ argument that they have a First Amendment right to disclose this sensitive national-security information, it is well settled that prohibitions on the disclosure of classified information, such as the ones contained in this court’s orders, satisfy the First Amendment,” the Justice Department said. “The government has a compelling interest in protecting such national-security information from disclosure, and the prohibitions on disclosure are narrowly tailored to protect that interest.”

In statements e-mailed to TIME, Google, Microsoft, LinkedIn and Yahoo responded to the Justice Department’s brief. Facebook declined to comment. “We’re disappointed that the Department of Justice opposed our petition for greater transparency around FISA requests for user information,” said a Google spokesperson. “We also believe more openness in the process is necessary since no one can fully see what the government has presented to the court.” A Microsoft spokesperson said: “We will continue to press for additional transparency, which is critical to understanding the facts and having an informed debate about the right balance between personal privacy and national security.”

A LinkedIn spokesperson said the company “deeply respects and supports the U.S. government’s strong interest in, and its obligation to protect, national security. However, we believe this interest must be weighed against transparency and accountability. We firmly believe that what we are seeking — the disclosure of the number of U.S. national-security-related requests that we receive — is consistent with national-security interests, the law and our commitment to transparency.”

(MORE: Apple, Google, Facebook Join Civil-Liberties Groups for NSA Transparency Push)

A Yahoo spokesperson said the company is “disappointed with the Justice Department’s decision to bar us and other Internet companies from publicly disclosing the specific number of user-data requests that we receive from the U.S. government under national-security statutes. The U.S. government’s decision to block our ability to share with our users more granular information related to national-security requests ultimately breeds mistrust and suspicion both of the United States and of companies that must comply with government legal directives. We urge the U.S. government to reconsider this decision and grant our petition for greater transparency around national-security requests for user data.”

Even as the tech titans press their quest for greater transparency with the FISC — they have until Oct. 21 to formally respond to the Justice Department’s brief — their allies are taking the battle to the U.S. Congress. Two prominent lawmakers, Senator Al Franken, a Minnesota Democrat, and Representative Zoe Lofgren, a California Democrat, have introduced legislation — the Surveillance Transparency Act of 2013 (in the Senate) and the Surveillance Order Reporting Act of 2013 (in the House) — that would give the companies the right to publish basic statistics about the government’s demands for user data.

Kevin Bankston, senior counsel and director of Free Expression Project at the Center for Democracy and Technology, which has been a leading advocate for greater transparency, expressed support for the legislation. “As America and the world debate what level of government surveillance is acceptable in a 21st century democracy, there is at least one point of growing consensus between advocates, companies and policymakers: greater transparency around government surveillance is absolutely necessary to ensure accountability and prevent abuse of these ever more powerful technologies,” Bankston said in a statement. “We are thankful that Congress is moving so quickly to ensure the level of transparency necessary to inform the American people and to restore the trust of Internet users around the world.”

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