Google challenges U.S. gag order, citing First Amendment

Google asked the secretive Foreign Intelligence Surveillance Court on Tuesday to ease long-standing gag orders over data requests the court makes, arguing that the company has a constitutional right to speak about information it is forced to give the government.

The legal filing, which invokes the First Amendment’s guarantee of free speech, is the latest move by the California-based tech giant to protect its reputation in the aftermath of news reports about broad National Security Agency surveillance of Internet traffic.

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Google requests permission to publish information about FISA orders it has received.
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Google requests permission to publish information about FISA orders it has received.

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Revelations about the program, called PRISM, have opened fissures between U.S. officials and the involved companies, which have scrambled to reassure their users without violating strict rules against disclosing information that the government has classified as top secret.

A high-profile legal showdown might help Google’s efforts to portray itself as aggressively resisting government surveillance, and a victory could bolster the company’s campaign to portray government surveillance requests as targeted narrowly and affecting only a small number of users.

Tuesday’s unusual legal move came after days of intense talks between federal officials and several of the technology companies, including Google, over what details can be released. It also comes as the firms increasingly show signs of wanting to outdo each other in demonstrating their commitment to protecting user privacy.

In its petition, Google sought permission to publish information about how many government data requests the surveillance court approves and how many user accounts are affected. Google long has made regular reports with regard to other data demands from the U.S. government and other governments worldwide, but it has been forced to exclude requests from the surveillance court, which oversees an array of official monitoring efforts that target foreigners.

Facebook, Microsoft and Yahoo in recent days have won federal government permission to include requests from the court as part of the overall number of data requests they receive from federal, state and local officials. Google has rejected that approach as too imprecise to help users understand the scope of its cooperation with federal surveillance.

“Google’s users are concerned about the allegations. Google must respond to such claims with more than generalities,” it said.

In a statement also issued Tuesday, the company said, “Lumping national security requests together with criminal requests — as some companies have been permitted to do — would be a backward step for our users.”

The Justice Department did not immediately reply to a request for comment Tuesday night.

Surveillance court requests typically are known only to small numbers of a company’s employees. Discussing the requests openly, either within or beyond the walls of the company, can violate federal law.

Yet even if Google is permitted to say how many requests the surveillance court has made, the information may not shed much light on PRISM. The program does not require individual warrants from the surveillance court each time a search is made.

The existence of PRISM was first reported by The Washington Post and Britain’s Guardian newspaper.

Even overall numbers of surveillance court requests would offer insight “only at a very high level of abstraction,” said Stephen Vladeck, an American University law professor. “I don’t think we’ll learn anything other than how pervasive this practice has been. . . . It will only be a piece of a much larger puzzle.”

The court, based in downtown Washington and composed of 11 federal judges appointed by Chief Justice John G. Roberts Jr., rarely rejects government requests for information. Of 1,789 requests it received in 2012, it approved all but one, which was withdrawn.

In 2008, the court rejected a challenge from a technology company that argued that a government request for information on foreign users was too broad to be constitutional. The court redacted the name of the company and other details when it published the ruling. Few of its decisions are ever made public. Appeals are handled by a secretive review court and can reach the Supreme Court.

The sharply limited public window into the legal infrastructure of surveillance review has made it difficult for outsiders to evaluate its decisions or the value of the secrecy it maintains.

“As with so many areas of national security, it’s hard to know if it makes a difference,” said Orin Kerr, a George Washington University law professor. “It’s very frustrating, and that’s the essence of it.”

All of the technology companies involved in PRISM, including Facebook, Apple, Microsoft, Google and Yahoo, have struggled to respond to the revelations about NSA surveillance. (Washington Post Co. chief executive Donald E. Graham is on Facebook’s board.)

Most of the companies have issued carefully crafted denials, saying that they do not permit wholesale data collection while acknowledging that they comply with legal government information requests. In Tuesday’s legal filing, Google called the Post and Guardian reports about PRISM “misleading.”

Those articles cited an NSA Power­Point presentation that said the agency connected directly to the servers of Facebook, Google, Microsoft and other tech industry giants — an assertion immediately denied by the companies. The program was described differently in another NSA document obtained by The Post.

When news of the PRISM program broke two weeks ago, officials at Facebook, Google and other tech firms informally conferred on a public response, according to two people who were familiar with the discussions and spoke on the condition of anonymity because the talks were private.

Much of the conversation was aimed at gathering more information about PRISM, these people said, and the communications staffs and lawyers made calls to learn of one another’s plans for a public response. The initial round of company statements used similar phrases, with Google chief executive Larry Page and Facebook chief executive Mark Zuckerberg vigorously denying that they had given the government “direct access” to their servers.

Four days later, Facebook, Google, Microsoft and Yahoo issued statements within hours of one another, calling for greater freedom to disclose NSA data requests. Twitter, which the NSA PowerPoint slides did not list as a provider to PRISM, echoed the companies’ sentiments.

But dissent among the companies grew. When Facebook, Microsoft and Yahoo later agreed to report surveillance court requests in conjunction with other government orders, Google issued a statement criticizing the disclosures, as it did again Tuesday.

Twitter, which has a reputation of taking a hard line against government data requests, endorsed Google’s position, with its legal counsel, Benjamin Lee, tweeting, “We agree with @Google: It’s important to be able to publish numbers of national security requests — including FISA disclosures — separately.”

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