Internet Companies Argue A 1st Amendment Right To Correct False Reports On NSA Spying, Despite Gag Orders

from the fighting-the-fight dept

A week and a half ago, we noted that the intelligence community and the big internet companies (Google, Microsoft, Yahoo and Facebook) had failed to come to an agreement that allowed the tech companies to publish the details on how many requests FISA court orders they get and how many of their users this impacts. Given that, the various companies made it clear that this fight would continue in court. Today, they filed very similar briefs, which you can see below, claiming a few key things:

  1. The various public reports from The Guardian, The Washington Post (and others, including Gawker) are flat out wrong concerning the nature of these companies’ involvement with the NSA.
  2. Because of the gag order on FISC orders under Section 702 of the FISA Amendments Act, the tech companies are barred from correcting the record, which is tremendously harmful to them and their business prospects.
  3. They have a First Amendment right to give out information on how many such requests they receive, and how many users those requests have impacted.
  4. Doing so would have no harmful impact on national security.

That seems to be the basic argument, and it’s a strong one. The Google and Yahoo filings, in particular, don’t hold back in terms of how ridiculous this whole situation is, in which they’re accused of doing something and are barred due to a nebulous gag order from proving that they didn’t actually do it. Some of the requests also note that the court’s hearings over these challenges should also be held in public. As Google’s filing notes:

Google further requests that the Court hold oral argument on this amended motion and that the argument be open to the public.. A public argument would be consistent with this Court’s rules, which state that “a hearing in a non-adversarial matter must be ex-parte and conducted within the Court’s secure facility,” suggesting, by negative implication, that a hearing in an adversarial matter shall be open….. It is also required by the First Amendment, which generally protects a right of public access to judicial proceedings.

I imagine we’ll be hearing about this case for quite some time….





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Comments on “Internet Companies Argue A 1st Amendment Right To Correct False Reports On NSA Spying, Despite Gag Orders”

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42 Comments
out_of_the_blue says:

Yeah, to the skeptical, this is pro-corporatist crap.

First and foremost: corporations are NOT Constitutional “persons” and so CANNOT have First Amendment rights.

It’s clearly self-serving publicity and we’ve NO guarantee they’ll do it, because we can’t audit them for compliance.

But Mike passes by this shocking assertion without even faint demur.

Corporations are manifestly NOT persons: they’re an invention of lawyers for the purpose of allowing specific “natural persons” to gain money in public markets yet escape personal liability under common law. It’s sheer fact that these legal fictions have no physical body so no matter what a corporation does, even if outright murder, it can’t suffer any punishment other than money fine. “Limited Liability Corporation” states exactly that.

The “natural persons” who wish to form a corporation must FIRST ask permission from the public and so the resulting fictional entity has only granted privileges. They must promise to serve the public interest, and so those privileges exist only during good behavior.

Only the pernicious power of money that over decades paid for statutes causes lawyers to regard corporations similarly to persons. But lawyers will argue anything for a fee; they’re as close as “natural persons” can get to being soulless heartless profit machines just like corporations.

Now, if that doesn’t convince you and still want to argue, YOU must make a case that corporations do have rights. You’re the one proposing a positive: I’m not required to further prove so obvious a negative. — To save time, any and all court cases that you wish to cite, I’ll wave aside on these grounds: courts are often utterly wrong, for instance once held outright slavery to be lawful, besides that they are public servants holding Offices whose SOLE authority stems from that We The People authorize them to act within prescribed bounds. Also, corporations have practically unlimited money with which to influence not only judges but the medieval guild that controls all lawyers. But when such government becomes destructive of OUR ends, we can dissolve those fictions too. So on idealistic and practical grounds I require you to set aside court decisions and argue from first principles and common law. — AND YOU CAN’T! There’s NO way that legal fictions have rights.

Me says:

Re: Yeah, to the skeptical, this is pro-corporatist crap.

“Corporations are manifestly NOT persons: they’re an invention of lawyers for the purpose of allowing specific “natural persons” to gain money in public markets yet escape personal liability under common law. It’s sheer fact that these legal fictions have no physical body so no matter what a corporation does, even if outright murder, it can’t suffer any punishment other than money fine. “Limited Liability Corporation” states exactly that.”
___________________________

You don’t know what the hell you’re talking about. The corporation doesn’t get limited liability, the owners behind it do. The corporation can suffer punishments other than a monetary fine, including but not limited to injunctions, dissolution, etc. And it wasn’t an invention of “lawyers”. It was an invention of ordinary businessmen (even the first “corporate law” was passed by a board of trade, not lawyers). You obviously learned just enough off that side of cereal to pepper your insanity with bits of jargon, but don’t understand the words at all.

bigpicture says:

Re: Re: Yeah, to the skeptical, this is pro-corporatist crap.

Also you forgot to mention that a CEO of a corporation can go to jail if found criminally negligent. That would be by breaking the law, and not by economically running the company into the ground.
Apparently you are not a criminal if you steal the shareholders money within the rules of the casino game.

Ray says:

Re: Yeah, to the skeptical, this is pro-corporatist crap.

Most of the time I disagree with the things you say, for various reasons that I’m not going to get into, but in this case I fully agree with you. The companies are only really doing this because it affects their business.

No matter how benevolent a business might seem, they are there to make money first and foremost, we must always think that their decisions benefit them or protect them somehow.

Gwiz (profile) says:

Re: Yeah, to the skeptical, this is pro-corporatist crap.

So on idealistic and practical grounds I require you to set aside court decisions and argue from first principles and common law.

Are you really arguing that we should just ignore the ruling of the highest court in our land because was made by people with higher incomes than you?

Now I agree with you that Citizens United v. Federal Election Commission was unfortunate, but I think I’ll wait until that gets overturned at some point in the future, instead of promoting anarchy, thank you very much.

Kind of a weird coming from someone like you, Blue, who argues the moralistic side of copyright, since copyright requires government enforced laws to exist.

Skeptical says:

In their defense

Companies should of course be free to defend themselves against false accusations, but given the information revealed so far I can only imagine such defenses would involve either half-truths (in the style of NSA’s “under this program”) or ignorance (such as where the company isn’t aware of what employees with ties to the NSA are doing).

Matthew Cline (profile) says:

The various public reports from The Guardian, The Washington Post (and others, including Gawker) are flat out wrong concerning the nature of these companies’ involvement with the NSA.

I wonder if merely saying that little is a violation of the gag order? I mean, if they’re accused of A, and say “we didn’t do A“, are accused of B, and say “we didn’t do B“, and so on, up until they’re accused of Z, and say “no comment”, then you know that Z is exactly what they’re doing.

Anonymous Coward says:

Interesting motions. And they’re arguing prior restraint–Mike’s favorite! Google’s lawyers seem confused about what a prior restraint is. They argue that it’s a prior restraint, and then jump into a substantive challenge of the restriction. Prior restraints only look at process, not substance. Which is it, Google?

The part Mike quotes makes little sense:

A public argument would be consistent with this Court’s rules, which state that “a hearing in a non-adversarial matter must be ex-parte and conducted within the Court’s secure facility,” suggesting, by negative implication, that a hearing in an adversarial matter shall be open.

Just because a nonadversarial matter must be ex parte, that tells us absolutely nothing about whether an adversarial matter must be open. There is no logical “negative implication” there.

Anonymous Coward says:

Re: Re: Re:

The NSLs explicitly stifle those rights, seeing as how it seems that saying that there is an NSL in place. NSLs come from the Government. Thus, this is prior restraint by the government.

Google is arguing that their speech can’t be restricted at all, not that there hasn’t been enough procedural protection. Their claim is about substance, not process.

trinsic says:

Its a big smoke screen to get everyone’s attention off of the fact that there is back doors into all these companies and releasing numbers does nothing to expose that.
The NSA is playing along. Eventually this info will be allowed to be released to keep the attention of the really important stuff until such time as they move onto something else.
We are currently involved take over of this country and are now part of a covert police state that is getting worse.
Everyone is being led around by true but less than essential information to keep people in the dark as to how far we are along with the plans to move over to a world currency dominated by people in power. The sooner you realize this the better for everyone.

Google storm clouds gathering online.

Ed the Engineer says:

Profit vs.Doing what is right.

I don’t think this is an either or thing, but rather a little bit of both. As Mike points out, these corporations have tried to fight back at times. It has always struck me that these gag orders are a huge constitutional problem. How can I be forced to perform an action, and forbidden to discuss it, even to determine if the order is legal? This is a great way for the government to bypass the constitution entirely. Look at the telco immunity. Nice trick that.

That being said, I am very grateful that it is not in the corporations best financial interest to co-operate with the government in these cases. If it was, we might not even hear much about this issue.

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