Google, one of the tech companies at the heart of the public-private friction over government requests for commercial data related to national security, is planning to step up its efforts to win the authority to make public disclosures about the scope of those surveillance orders.
In Congress, the search giant is backing bills introduced by Al Franken (D-Minn.) in the Senate and, in the House, by Zoe Lofgren (D-Calif.) that would authorize (but not require) companies to release aggregate statistics describing the number of national security orders they have received in a given time period and how many users have been impacted.
"We've been supportive of that legislation, along with a number of other companies, trade associations and civil society groups. And we're looking forward to a broader campaign to codify the principles that are reflected in those bills," Lieber said this week at an event hosted by the Cato Institute, a libertarian think tank.
Lieber says that those bills "advance bedrock First Amendment principles" involving disclosures that, under normal circumstances, would require no special action for companies to make. But the Justice Department and national security authorities have pushed back against the efforts of tech firms like Google, Microsoft, Facebook and Yahoo to publish aggregate data about the volume and scope of national security orders issued under the Foreign Intelligence Surveillance Act.
"If these leading Internet companies are permitted to make these disclosures, the harm to national security would be compounded by the fact that other companies would surely seek to make similar disclosures." —Department of Justice
Those four companies, joined by LinkedIn, have taken their case to the FISA court, or FISC, where they are seeking a declaratory judgment that would permit them to disclose figures about the data requests they receive under each section of the law, further parsing the numbers by delineating "content" and "non-content" requests.
In a response filed with the FISC Sept. 30 arguing against the tech firms' motion, the Justice Department cited reforms the government has taken in the interest of greater transparency, including granting permission for companies to publish aggregate figures about how many administrative subpoenas (known as national security letters) they receive from federal authorities, as well as a commitment to report the total number of orders — broadly defined to include FISA actions and national security letters — issued each year.
DoJ Argues Against Disclosure Permission
The Department of Justic (DoJ) argued that the more granular disclosures that the tech companies are seeking would undermine the efforts of the intelligence community by providing terrorists and other adversaries a picture of which services are subject to what level of surveillance, tipping them off about when the feds have begun collecting information about a new service, and which platforms the government is not serving paper on.
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