Disclosure of Surveillance Requests Would Compromise National Security, Government Tells FISA Court
The federal government urged the Foreign Intelligence Surveillance Court to deny numerous tech companies the right to disclose further information about government surveillance requests, in a filing dated Monday but made public Wednesday (http://1.usa.gov/1hkZum3). For months, five tech and social media giants -- led by Google and Microsoft -- have been arguing the First Amendment gives them the right to disclose the specific number and type of surveillance requests they receive as long as the content or surveillance target is not disclosed. The government called that interpretation “implausible,” saying it “ignores the forest for the trees. It would permit the damaging disclosures that would reveal sources and methods of surveillance potentially nationwide."
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The government’s filing was not shocking, said privacy advocates. “We are disappointed but unsurprised to see the government opposing the Internet industry’s plea that it be allowed to be more transparent with its users about the extent of the [National Security Agency’s] internet surveillance,” Kevin Bankston, director of the Center for Democracy and Technology’s Free Expression Project, said in an email statement.
The companies have until Oct. 21 to file a response to the government’s position and plan to do so, said spokespeople for two of the companies. The court will then make a final ruling on a yet-to-be- determined timeline, according to a Microsoft spokesperson. Google and Microsoft filed motions in the case in June. The government delayed its response as it negotiated with the two companies. But when those conversations broke down, the two tech companies filed more detailed motions Sept. 9. Yahoo and Facebook joined with motions of their own the same day. Eight days later, LinkedIn joined. “We will continue to press for additional transparency, which is critical to understanding the facts and having an informed debate about the right balance between personal privacy and national security,” said a Microsoft spokesperson. Google did not comment.
Prohibitions on disclosing classified information satisfy the First Amendment, the government argued, calling the issue “well-settled.” Nondisclosure agreements between the government and company employees prohibit the disclosure of any classified data, according to the response. And it’s not under the court’s jurisdiction to reinterpret that reading of the law, it said.
Such a detailed release of information would be “invaluable to our adversaries,” the government wrote. It would compromise national security by giving away “a clear picture of where the Government’s surveillance efforts are directed and how its surveillance activities change over time, including when the Government initiates or expands surveillance efforts involving providers or services that adversaries previously considered ’safe,'” it said.