Microsoft says the government’s transparency report isn’t enough. Here’s why.

August 30, 2013

(Charles Dharapak / AP)

A day after the Obama administration announced it would start releasing annual reports on the government's surveillance activity, Microsoft said it plans to continue its legal fight for permission to produce more detailed breakdowns of government information requests.

Microsoft's top lawyer, Brad Smith, wrote in a blog post Friday that separate negotiations with the Justice Department to allow tech companies to speak more openly about federal data requests had broken down. While Director of National Intelligence James Clapper had made a good "first step" in agreeing to release some of the data, it wasn't enough, Smith wrote.

"While we appreciate the good faith and earnest efforts by the capable government lawyers with whom we negotiated," Smith added, "we are disappointed that these negotiations ended in failure."

In the coming months, Clapper's agency has confirmed it intends to publish a report disclosing the total number of court orders for surveillance granted to the NSA over the previous year. The report will break down those numbers according to the various legal authorities that govern such requests, such as Section 702 of the FISA Amendments Act.

But Microsoft isn't satisfied. The company wants to be able to discuss just the court orders that it receives, rather than a larger bucket of reports that also includes demands made of other tech companies. Google has made a similar plea in a separate filing to the FISA court. It's as much a public relations move as a bid for greater openness; by showing company-specific numbers, Microsoft and Google would be able to put distance between themselves and the Justice Department.

Microsoft goes one step further than Google, however. In accordance with the practices contained in its own transparency report, Microsoft said that the government should break down those numbers even more to distinguish requests for user metadata, such as IP addresses and e-mail header information, from demands for user content, which would expose personally identifiable information such as the actual text of e-mails to law enforcement.

In some cases, this information can be gleaned from other information the government plans to make available. For example, pen registers, which make note of all the telephone numbers that a monitored device dials, are always metadata rather than content.

This is the first time Microsoft has asked for a breakdown along content-vs-metadata lines. In its initial motion to the FISC requesting greater freedom to talk about data requests, Microsoft asked only to disclose aggregate numbers.

The government is hesitant to go beyond the disclosures it announced on Thursday.

"There are sensitivities to disclosing any more information at the government-wide level," said a Justice Department official who spoke on the condition of anonymity because of a lack of authorization to speak publicly. "It's unnecessary compared to the disclosures the DNI has said it intends to make."

So for now, Microsoft will keep up its litigation against the government. Presumably, so will Google; representatives for the company did not respond to questions Friday. Unless the FISA court's top judge intervenes, however, it seems as though Silicon Valley and the administration have reached a stalemate.

Brian Fung covers technology for The Washington Post.
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