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Summary:

Google, Microsoft and others are fighting to lift gag orders that prevent them from disclosing the number of surveillance requests they receive — but the FBI won’t even show them the legal arguments they are using to oppose the request.

Lawyers for Google, Microsoft and other tech firms that are squaring off with the FBI before America’s spy court say they’re stuck in an unfair fight: the government, which is opposing a petition to disclose surveillance numbers, won’t even show them some of the legal arguments it is using to uphold current gag orders.

In response, the tech companies are asking the Foreign Intelligence Surveillance Court to strike the blacked-out portions of the government’s filing. The request, filed this week, notes that the “heavily redacted” submissions mean the court could decide the First Amendment case on the basis of arguments the tech companies will not even get a chance to see.

The submissions in question were filed on September 30, and represent the government’s response to claims by Google, Microsoft, Facebook, Yahoo and LinkedIn that the companies have a free speech right to disclose the number of requests they receive under the Patriot Act. Here is a screenshot that shows how pages of the government’s legal filing appear:

screenshot of censored FISC court filing

The redactions are remarkable given that the case is not about specific surveillance operations or tactics but, instead, is about basic Constitutional issues of free speech. The tech companies claim they have proposed various measures — such as only showing the government brief to lawyers with Top Secret clearance — to address the FBI’s concerns over national security, but that the FBI still refused to show them the legal arguments.

As a result, the only people who can see the filings are the judges of the spy court, whose operations are likewise confidential. The situation appears to validate an explosive claim by the New York Times in July that the court “has quietly become almost a parallel Supreme Court.”

The tech companies claim that the secret filings are not only unconstitutional, but that they further impede the tech industry’s efforts to refute incorrect media reports about their role in the ongoing scandal over a surveillance program known as PRISM.

Here is the new legal brief, which is signed by counsel from all five companies. Last week, Apple filed a brief in support of its tech industry rivals.

FISA court motion to strike.pdf

  1. Now we are seeing the true depth of tyranny in this police state. I dont doubt the corps have been told if they want to keep their business they better play along.

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  2. The FISC doesn’t ████ ██████ ████ █████ ████.

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  3. Sick to death of these big tech companies trying to play bullied innocent victims. You think the NSA is stalking you? These companies profit off of and have a business model built on commoditizing your information and they know full well (more or less) what their government buddies are up to. People need to stop viewing the world through the government bad companies good verse companies bad government good dyad. All sufficiently motivated power structures are dangerous and need to be checked by the distributed little guy. This is why Wikileaks and other organizations are probably the most important organizations in the world right now.

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    1. All large and powerful entities can become dangerous if there are not enough checks in place to keep them balanced. The companies do collect information, but not for spying. They collect information it only to make profit, so they will use your information to show more relevant ads, or to find ways so that you can buy more of their things. Companies use algorithms to scan through text and images, and display advertisements that way. The government will search for very personal and identifying information.

      The government wants it to censor/spy, which is far worse than these companies intent. It is also far worse that the government is forcing these companies to do comply with them.

      If you want anonymity, there are plenty of sources out there on the internet that will disable these companies from properly tracking you. Most people don’t care, but if you do care, then do it.

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    2. This is a joke, The companies act like they had nothing to do with this. They are guilty as sin. They think the public is stupid. Government and the Techs are in bed together

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  4. Sorry, but corporations don’t claim the right to imprison you without trial, only the US federal government claims that, and they also have the armed goons to back that threat. This “corporations are evil too” argument is simply silly and childish.

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