DOJ Still Refuses To Let Tech Companies Reveal How Much Info They Get Via FISA Orders

So, last night Director of National Intelligence James Clapper said that the administration will start releasing some data on how many FISA records it seeks, and how many “targets” there are. In a first draft of that post, I had originally speculated that this hopefully meant the various tech companies could finally add FISA request numbers to their transparency reports, as they’d requested. However, after reading Clapper’s statement carefully, it seemed fairly obvious that what they were releasing was a lot more limited than what the tech companies have been asking for — including the number of people impacted. Given that, I removed the paragraph about how it might impact tech companies, because it seemed likely that the feds weren’t actually going to allow the tech companies to reveal some basic metadata about the FISA requests they receive. Indeed, today was the (many times extended) deadline for the DOJ to respond to the legal filings by various tech companies to publish those numbers, and it appears that the DOJ has officially turned down the request.

Microsoft wasted little time this morning before speaking out on its blog and stating that this was unacceptable, and that it would continue the legal fight.

On six occasions in recent weeks we agreed with the Department of Justice to extend the Government’s deadline to reply to these lawsuits. We hoped that these discussions would lead to an agreement acceptable to all. While we appreciate the good faith and earnest efforts by the capable Government lawyers with whom we negotiated, we are disappointed that these negotiations ended in failure.

Yesterday, the Government announced that it would begin publishing the total number of national security requests for customer data for the past 12 months and do so going forward once a year. The Government’s decision represents a good start. But the public deserves and the Constitution guarantees more than this first step.

For example, we believe it is vital to publish information that clearly shows the number of national security demands for user content, such as the text of an email. These figures should be published in a form that is distinct from the number of demands that capture only metadata such as the subscriber information associated with a particular email address. We believe it’s possible to publish these figures in a manner that avoids putting security at risk. And unless this type of information is made public, any discussion of government practices and service provider obligations will remain incomplete.

Given this, Microsoft (and, it appears, Google) are planning to continue to fight this in the courts, arguing that they have a First Amendment right to publish this information. This lawsuit is going to be very, very important:

With the failure of our recent negotiations, we will move forward with litigation in the hope that the courts will uphold our right to speak more freely. And with a growing discussion on Capitol Hill, we hope Congress will continue to press for the right of technology companies to disclose relevant information in an appropriate way.

The United States has long been admired around the world for its leadership in promoting free speech and open discussion. We benefit from living in a country with a Constitution that guarantees the fundamental freedom to engage in free expression unless silence is required by a narrowly tailored, compelling Government interest. We believe there remains a path forward that will share more information with the public while protecting national security. Our hope is that the courts and Congress will ensure that our Constitutional safeguards prevail.

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