Google challenges secret court over gag order

Citing the first amendment, Google files a legal motion to publish the number of FISA data requests it has received.

In the world of technology companies, differentiating your product is everything. Apple, Yahoo, Microsoft, and Facebook have successively released statements about the National Security Agency’s PRISM Internet surveillance program using similar phrases to say the same thing: the company wishes it could disclose more about government data requests, but they do not have permission to do so.

Google has done something different.

As of Wednesday afternoon, Google stands as the only of the nine Internet service companies that has challenged the Foreign Intelligence Surveillance Court by filing for permission to publish aggregate statistics of how many data information requests it received pertaining to national security. If Google’s motion is passed, it could then release numbers of how many Foreign Intelligence Surveillance Act (FISA) requests it received.

“The fact that Google has published its request [to FISC] suggests that this is both a legal and a PR maneuver,” says David Pozen, a law professor specializing in national security law at Columbia University. It’s very unusual that a document relating to FISC proceedings has been made public, Mr. Pozen explains. But this is an unusual case. Usually, the court hears arguments from government attorneys trying to get permission for officials to gather information on someone who is perceived to be a national security threat. In this case, there is a third party in the courtroom – Google, the information provider. This means that Google’s lawyers may also privy to what is going on inside FISC.

The question now: Does Google’s interest in providing the public with information about the number of FISA orders that it has received outweigh the national security interest of keeping that number classified?

“Google has a wealth of information just about routing data, when you e-mail, who you e-mail, which e-mail you read first,” says Jane Bambauer, a law professor at the University of Arizona. The Electronic Communications Privacy Act prevents companies with access to user data from distributing it indiscriminately. But gag orders, like the one currently preventing Google and the other Internet providers in the PRISM surveillance program from disclosing FISA data request statistics, might not be in the public interest.

Google has already published the number of National Security Letters that it receives as part of its 2013 Transparency Report with the permission of the FBI, according to the company’s FISC motion. But FISA requests allow a different scope of surveillance, explains Ms. Bambauer. Under FISA, “the government doesn’t have to prove that the person under surveillance has done anything wrong," she says, "just that they are associated” with a foreign power group – a broadly defined term that includes individuals viewed as national security threats to the United States.

“I think there is some information that can likely be made public without jeopardizing” information that needs to remain classified for security reasons, Bambauer says.

Google’s court motion requests permission to publish both “the total number of FISA requests it receives, if any,” and “the total number of users or accounts encompassed within such requests.”

“Google must respond to such claims with more than generalities,” the motion reads. “Transparency is a core value at Google and the company is committed to informing its users and the public about requests it receives from government agencies around the world for the production of users’ information and/or communications.”

The court motion accuses the Guardian newspaper of mischaracterizing Google’s compliance with foreign intelligence surveillance requests, saying that the story “falsely alleged” that Google gave the government “unfettered access to the records and communications of millions of its users.” Google also characterized the Washington Post’s account of the Internet company’s role in the PRISM program as “misleading.”

The two articles relied heavily on leaked NSA documents and testimony from Edward Snowden, a former-NSA employee.

Besides hurting consumer faith in a company that has built its empire on being transparent, keeping a gag on Google and the other eight companies would set a harmful precedent by removing transparency in the broader discussion of data accumulation, Bambauer says.