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Summary:

The FBI and the US government say Google, Microsoft and other tech firms have no free speech right to declare how many data demands they receive under a controversial Foreign Intelligence Surveillance Act legal process.

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photo: Gigaom

The Department of Justice, in long-awaited court filings that have just been released, urged America’s secret spy court to reject a plea by five major tech companies to disclose data about how often the government asks for user information under a controversial surveillance program aimed at foreign suspects.

The filings, which appeared on Wednesday, claimed that the tech companies — Google, Microsoft, Facebook, LinkedIn and Yahoo — do not have a First Amendment right to disclose how many Foreign Intelligence Surveillance Act requests they receive.

“Adversaries may alter their behavior by switching to service that the Government is not intercepting,” said the filings, which are heavily blacked out and cite Edward Snowden, a former NSA contractor. Snowden has caused an ongoing stir by leaking documents about a U.S. government program known as PRISM that vacuums up meta-data from the technology firms.

“[R]eleasing information that could induce adversaries to shift communications platforms … would cause serious harm,” the filings add.

The response comes after negotiations about disclosures broke down in August between the government and Google and Microsoft. Shortly after, the other three companies joined the legal fight, while storage company Dropbox signed on as a supporter last week.

The tech companies claim they need to publish the number of FISA requests, in part as a means of refuting what they say is widespread and inaccurate reporting about their role in the PRISM controversy. Google and others have repeatedly pointed out that they do not seek to disclose the contents of the requests.

Currently, the FBI permits the companies to publish the overall number of law enforcement requests they receive. This overall number, however, bundles the numbers of FISA requests alonside ordinary law enforcement requests — meaning the number does little to reveal the pervasiveness of the PRISM program.

The filings, submitted by the Justice Department and an FBI agent, argue that the disclosures are also encouraging other tech companies to publish stats as well — which will provide information to enemies about which companies the government is watching.

“[U]nilateral disclosures would allow our adversaries to infer when the Government has acquired a collection capability on new services,” they said, adding that the companies have no free speech right to disclose the data because, “[P]ublic debate about surveillance does not give the companies the First Amendment right to disclose information that the Government has determined must remain classified.”

The government also argues that the spy court has no jurisdiction to grant the request in the first place, in part because the tech companies’ employees have signed secrecy deals with the FBI — deals in which the court can’t interfere. It also points out that the court does not have authority over the spy services’ classified document scheme, and that the disclosures that Google and Microsoft want to make are “Secret” (the other categories are Unclassified, Confidential and Top Secret). The filings also argue that federal government’s own proposed transparency report will offer the right balance between transparency and security.

Here are the documents, which appeared Tuesday morning on the spy court’s website:

US Response to MSFT, Google Et Al

FBI Response to MSFT, Google FISA Ask

  1. The Gov’t’s argument reminds me of the excuse Nixon used to hide his criminal activity – “we can’t disclose the facts because it would jeopardize national security. But trust us, we wouldn’t do anything wrong.”

    The most disheartening thing about this is it shows they’re not going to stop. They really believe, “We’re hunting terrorists; we don’t need no stinking 4th Amendment.”

    The upshot is we have to take matters into our own hands. Make ourselves “small” on the Internet. A way to keep your stuff safe from prying eyes is to get a private cloud, like a Cloudlocker (www.cloudlocker.it) that works like a regular cloud service but stays at home where they still need a warrant and probable cause that you’re a bad guy to look inside. Expect to see more new products like this to help protect us from the people supposed to protect us.

    1. Well, Microsoft can stand up to the US government interfere with other browser compatibility with Windows through intrusive updates, yet they can stand up to them when they issue letters to look at user info without probable cause.

      The European Union penalizes Microsoft for defying court orders but the US Government doesn’t.

  2. The US government claims are a total joke. Next they’ll claim that any discussion of the NSA and CIA would aid terrorists. Revealing the number of requests only helps the American people see how delusional our government has become.

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