America’s big tech companies, embroiled in an on-going surveillance scandal, are in a pitched legal fight with the government for the right to disclose how many data demands they receive under the Patriot Act.
This week, the legal campaign led by Google and Microsoft got an important boost as industry rival Apple filed an eloquent brief in support of the companies’ First Amendment challenge before America’s secret spy court.
In the filing, Apple discusses its communications with the FBI and says the government “irrationally prohibits” its right to publish information about how many national security requests it receives.
Apple is not challenging the FBI’s right to impose secrecy over specific investigations — such as, for instance, a request for a certain terror suspect’s Gmail or iCloud account. Rather, Apple is frustrated because the company can’t even disclose how many requests it receives in the first place; it can only disclose broad bands of numbers (such as 1000-2000) that include ordinary police requests.
In its complaint, Apple says these gag rules violate Constitutional free speech rights, and stifle discussion about what the government is doing. This passage, from page 5 of the filing, sums up Apple’s opinion of the current disclosure rules:
From Apple’s perspective, as well as the perspective of its customers and the public as a whole, this limited disclosure does not contribute effectively to the debate over the Government’s national security systems and and (as discussed infra) is unnecessary to protect national security .. a deliberate attempt to reduce public knowledge as to the activities of the Government
Apple also pushes back at the government’s argument that disclosing the number of surveillance requests will tip bad guys about what platforms the government is watching:
It simply is not a secret that the user accounts of some of the largest electronic communications service providers in the world can be and are subject to FISA surveillance.
In a related document published on Tuesday, Apple noted that is has not received any so-called FISA letters (a process the NSA uses to get information about foreigners), but that it does receive National Security Letters, which demand account information about Americans. Apple’s decision to disclose that it has not received a FISA letter is being described by some as a clever “warrant canary” — which means that, if the message disappears, we’ll know if Apple has received a FISA letter.
Finally, Apple joins the other tech firms in blasting the government and media’s description of the tech industry’s “surveillance activities,” claiming that the number of accounts being watched are in relation to the hundreds of millions of overall user accounts. Apple says as an example:
“[The] search of a particular user’s Facebook account is no more surveillance of Facebook than a search warrant executed on a single house is surveillance of the United States”
Facebook, LinkedIn and Yahoo are also part of the legal challenge. Here is the Apple filing, which includes a letter from the FBI at the end: