Google, Without Admitting It Gets FISA Orders, Files Lawsuit To Challenge FISA Gag Orders

from the well-that-ought-to-be-interesting dept

Google appears to be stepping it up a notch in trying to fight back against the claims that it is somehow opening up its system to the NSA or other law enforcement folks. As you now know well, one of the leaks from Ed Snowden a few weeks ago was about a system called PRISM, which is associated with how tech companies provide information to the federal government in response to FISA court orders. The initial reports, claiming that the NSA had full direct access to servers and could see what people were doing in real time, appear to have been extremely overblown, as it now seems clear that this was much more narrow. But there’s still a big question of how narrow. Google sent an open letter to the DOJ, asking for permission to reveal basic numbers on how many FISA requests they receive and how many people have had information passed along to the government under the program. The government then gave “permission” in a way that actually further obfuscated things, only allowing the release of numbers when combined with all sorts of other government requests.

Now, Google has filed a lawsuit against the government, arguing that gag orders on FISA requests violate the First Amendment. The filing itself is an interesting read, in part for its first footnote:

Nothing in this Motion is intended to confirm or deny that Google has received any order or orders issued by this Court.

Of course, that might lead some to suggest that Google can’t actually have standing, but there’s an interesting legal argument here. Basically, Google is arguing that the perception that it’s opened up its network to the NSA, as suggested in various reports, and which it cannot refute fully without revealing some details of FISA orders it has received, has caused it harm.

Google’s reputation and business has been harmed by the false or misleading reports in the media, and Google’s users are concerned by the allegations. Google must respond to such claims with more than generalities. Moreover, these are matters of significant weight and importance, and transparency is critical to advancing public debate in a thoughtful and democratic manner.

Given that, Google is seeking a declaratory judgment from the court that it has a First Amendment right to publish the total number of FISA requests it receives and the total number of users associated with those requests, though obviously not anything more. I’m sure the government will come back with all sorts of excuses as to why this is horrible, but it certainly presents an interesting legal challenge to the FISA court’s gag orders.

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Companies: google

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Comments on “Google, Without Admitting It Gets FISA Orders, Files Lawsuit To Challenge FISA Gag Orders”

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34 Comments
Anonymous Coward says:

S.1130

Only tangentially related to Google’s complaint in the Foreign Intelligence Surveillance Court?

The text of Senator Merkley’s bill S.1130 — Ending Secret Law Act (Introduced in Senate – IS) is finally up on Thomas.

Further, today, during the House Intelligence hearing, Representative Adam Schiff (California) stated that he would be introducing, in the House, a companion bill to Senator Merkley’s S.1130.

out_of_the_blue says:

An excellent piece of defending without admitting:

Even Mike starts by hedging: “Google appears to be”…

Mike’s italics: “Google is arguing that the perception that it’s opened up its network to the NSA”.

So there you go! All just a mis-perception of what Google says are “false or misleading reports in the media”.

One of the benefits of weaseling is that it’s difficult to expose, because no matter what the outcome is, the weasel can argue techicalities to always end up right.

I expect that as this suit drags through the courts we’ll incidentally learn for sure that NSA does have access to Google’s number crunchers, but that Google isn’t lying now because it’s not “direct access” to their “servers”. Or some further narrowing of “users”. In any event, don’t expect Google to just flat out admit it’s a spy agency.

Denying forever is totally consistent with Google being a spy agency. As is this court case: it’s good publicity now, could always get decided (or be maneuvered so) that they must keep it secret, and even if ever the truth emerges, no worse of damage. So if you game this out, it says nothing.

Niall (profile) says:

Re: An excellent piece of defending without admitting:

Google! Derp! Google! Bawk!

There, I managed to contribute more to this than your ongoing Google paranoia.

Seriously, if you were picking on other ‘big search’ or ad-monetised content (FB etc) you might seem reasonable, but you seem incapable of moving off your MS-sponsored talking points.

Dave says:

Re: Re:

That’s strange. There seems to be no way of adding comments. Perhaps a little one-sided, I feel. It all looks like someone who is totally desperate because nobody is actually listening to the ravings of a blithering idiot. There also seems to more than just a hint of paranoia creeping in here. Perhaps a visit to a psychiatrist would the order of the day OOTB, before you burn yourself out with all this totally unjustified venom? I would hope that the abuse facility will be well-used.

James Burkhardt (profile) says:

“Nothing in this Motion is intended to confirm or deny that Google has received any order or orders issued by this Court.
Of course, that might lead some to suggest that Google can’t actually have standing, but there’s an interesting legal argument here. Basically, Google is arguing that the perception that it’s opened up its network to the NSA, as suggested in various reports, and which it cannot refute fully without revealing some details of FISA orders it has received, has caused it harm”

Actually, its posible that by confirming they receive FISA requests (and specifically FISA requests) they would actually violate the gag order and therefore be sanctioned without the merits of the case ever being debated.

Anonymous Coward says:

Finally an admission of the limits on this. I think it is more important that the writers on this site pipes down and wait for more specific details on the extend of the surveillance instead of semi-blindly criticising everyone opening their mouth about the case.

While the criticism may be warrented it still needs some clarification of extend, broadness and exactness. Untill then, stick to the broad strokes when criticising and be careful about demonising politician-speak. Often you can analyse what the politician say too much and come to the wrong conclusion.

John Fenderson (profile) says:

Re: Re:

I think it is more important that the writers on this site pipes down and wait for more specific details on the extend of the surveillance

With the capturing of phone data, the one specific detail that we do have is more than enough to warrant great outcry: they’re compiling a database of data about all of our communications. Further revelations may indicate that the outcry be increased, but they cannot possible indicate that the outcry so far was too much.

The capturing of internet traffic data is less clear-cut, but the details we have right now are certainly enough to warrant expressions of concern.

Niall (profile) says:

Re: Re:

What is there to censor? If he were censoring you, why aren’t your posts vanishing? Why would we care about your spittle-filled rants anyway? All they are is you making unfounded assertions with no evidence, wrapped in ad-homs and temper tantrums, and served up with lashings of your ‘Mikey’ obsession/love affair.

Frankly, I could get more intelligent discourse on Free Republic, Spearhead or InfoWars…

Uriel-238 (profile) says:

Wow. This is bad on so many levels.

Let us say that I provide a service that offers a quantifiable amount of discretion: I promise I will use your metadata for research purposes, but only after your identity has been trimmed from it, and it doesn’t get viewed by human beings until it’s thoroughly anonymized (humans look at statistics, but not the data itself).

Then the DoJ sends me an NSA order to hand over all my data, which, as part of my business model, I’m obligated to my end-users to keep private. Then they gag me from actually saying that I turned all that data over. Ergo:
~ If I obey the order, I betray my client base.
~ If I refuse the order, I am in contempt of justice.

Yeah, the NSA really fucked over our tech community since we just cannot trust service in US jurisdiction ever again to keep our data private.

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