A civil liberties group this week forced the U.S. government to release a 2011 secret spy court decision that showed the National Security Agency had misrepresented the scope of its surveillance on three different occasions. The move was a major victory in the effort to shine light on NSA activities but, for now, it appears to be an isolated one as related legal challenges are so far bogged down.
Court records show, for instance, that the federal government has asked for six different extensions to respond to lawsuits by Google and Microsoft. The extended deadlines relate to a case in which the tech companies are claiming that they have a First Amendment right to disclose the number of Foreign Intelligence Surveillance Act requests they receive each year.
Extensions are common in court proceedings and, in this case, Google and Microsoft have acceded to them. But the government’s decision to seek delays on six different occasions to file a response is unusual, and may reflect sensitivity in light of the media’s increased scrutiny of the NSA. The slow pace is also surprising given that the tech companies’ are not seeking to publish specific numbers or any technical details: instead, Microsoft and Google are asking to report an aggregate band of numbers (for instance, 0-999 requests) in a given year.
For practical purposes, Google is simply asking for the free speech right to add the foreign surveillance numbers to its bi-annual Transparency Report, which already displays domestic data requests from the government. The report features charts like this one that include an “other” category (it’s unclear if the FISA requests fall under “other”):
The government’s delay in responding comes even though major media outlets, including Bloomberg and the New Yorker, filed a friend-of-the-court brief more than a month ago in support of the tech companies. Google and Microsoft did not respond to a request for comment about the reasons for the government’s extension requests.
Meanwhile, the government is also attempting to stymie an earlier, and potentially more significant, legal proceeding in the secret spy court. Specifically, the Department of Justice told the spy court in July to reject a request from the ACLU and a media organization at Yale Law School to publish its earlier decisions in which the court defined the Patriot Act under the Constitution.
While the spy court’s decision this week to order the release of the 2011 ruling was celebrated by civil libertarians as a victory against the government, the court itself is also a source of controversy. Known as the FISA Court, its proceedings take place entirely in secret — “it has quietly become almost a parallel Supreme Court in the words of the New York Times — and the appeals process is decided by the court itself in conjunction with the White House.