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(s goog), Microsoft(s msft), Facebook(s fb), LinkedIn(s lnkd) and Yahoo(s yhoo) — 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:
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