Despite recently pledging more surveillance transparency, the U.S. government is still enforcing extreme secrecy about the extent of its electronic spying efforts. But the world’s largest Internet companies are fighting back—challenging what they believe is an unlawful attempt to gag them.
On Monday, Google, Yahoo, Facebook, and Microsoft filed motions asking to be allowed to release information showing how many requests they have received under the Foreign Intelligence Surveillance Act, the law that underpins the NSA’s PRISM Internet spy program. So far, the government, citing vague national security concerns, has flat-out refused to allow the companies to disclose aggregate information showing exactly how many FISA requests they received and how many users were affected by the surveillance. The Internet giants are keen to disclose the information because they say that reports by the Guardian and the Washington Post about their involvement in the PRISM program were inaccurate and harmed their reputations, suggesting they had allowed the NSA “direct access” to mine data from their servers indiscriminately.
In its motion to the secret Foreign Intelligence Surveillance Court, Facebook argues that “disclosure of the data would not compromise the secrecy of any particular surveillance or acquisition,” and Google, Microsoft, and Yahoo make a similar case. The companies say that they want the court’s permission to publish figures for a six-month period and argue that they have a right to disclose it under the free speech provisions of the First Amendment. Google says in its motion that the government has failed to identify any statute or regulation that prohibits disclosure, but it continues to claim that the information cannot be released anyway.
In June, Google and Microsoft both filed petitions in the court seeking disclosure of the data. However, the companies say that subsequent negotiations with the government, which took place through July and August, were unsuccessful, with the Justice Department apparently refusing to allow the information to be published. The renewed petitions filed by Google and Microsoft, together with the motions filed by Facebook and Yahoo, represent a significant concerted effort to get the court to force the government to finally back down.
The DOJ’s position looks increasingly ridiculous and untenable, not least because the Director of National Intelligence committed in August to publishing a new transparency report that will annually show the total number of FISA orders issued and the number of individuals affected by them. The idea that each company disclosing the specific number of FISA requests it receives could somehow compromise national security is extremely far-fetched, and that the Justice Department has never been able to articulate exactly why the secrecy is necessary undermines its position. Back in March, for instance, I tried to get the FBI to explain why it was opposed to allowing Google to disclose the number of national security surveillance orders it received. The response? “We are not commenting.” Since the NSA leaks, the Obama administration has scrambled to present itself as keen to embrace more transparency on these issues. But it appears that the DOJ didn’t receive the memo, because in this case the mindset is clearly unchanged.