by Mike Masnick

Filed Under:
doj, first amendment, fisa, nsa, transparency

google, microsoft

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

from the of-course dept

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.

Reader Comments (rss)

(Flattened / Threaded)

  1. identicon
    Eponymous Coward, Aug 30th, 2013 @ 6:13pm

    Maybe Microsoft, and others, need to just realize that the administration won't let them come clean, so they might as well accidently this data somehow, somewhere. Regardless if it's behind a weak firewall, or in the back seat of a NYC taxi doesn't matter, as long as it gets out there and they retain legal deniability that they actively aided its release then the job is done. Maybe it's high time to fight fire with fire, and use these agencies dirty tricks against them. Let the administration be damned...

    reply to this | link to this | view in thread ]

  2. icon
    Akari Mizunashi (profile), Aug 30th, 2013 @ 6:31pm

    Dear companies,

    Remember that time many of you stepped up to stand against SOPA?

    Yeah, let's try that again, but this time, release everything you know of the NSA's snooping.

    It's extremely unlikely the NSA will come after any business since they'll be trying to clean egg off their face.


    reply to this | link to this | view in thread ]

  3. identicon
    slinkySlim, Aug 30th, 2013 @ 6:32pm

    "narrowly tailored"


    Yeah, OK. Do they mean like tailoring Dot Com's waist coat narrow or the narrow cut of a loin cloth for uranus?

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, Aug 30th, 2013 @ 6:33pm

    Most [Redacted] Administration in [Redacted].

    reply to this | link to this | view in thread ]

  5. identicon
    slinkySlim, Aug 30th, 2013 @ 6:34pm


    National Guard deployed to Silicon Valley - News at 11

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous, Aug 30th, 2013 @ 6:36pm

    "...unless silence is required by a narrowly tailored, compelling government interest". Hmmm, I must have missed that part of the constitution. Perhaps someone can point out where in the constitution such an exception is found.

    reply to this | link to this | view in thread ]

  7. identicon
    slinkySlim, Aug 30th, 2013 @ 6:37pm


    Most fucked up forty years ever.

    How to Get Owned by Your Government in Fifty Years or Less - on sale Thursday.

    reply to this | link to this | view in thread ]

  8. identicon
    slinkySlim, Aug 30th, 2013 @ 6:39pm


    PATRIOT Act, bitch. We have badges.

    reply to this | link to this | view in thread ]

  9. identicon
    Eric Grabowski, Aug 30th, 2013 @ 6:54pm


    Its not this administration, its the one before it that created the secret court and has dictated the law. The current administration needs to get off its behind and fix the mess left by bush!

    reply to this | link to this | view in thread ]

  10. This comment has been flagged by the community. Click here to show it
    out_of_the_blue, Aug 30th, 2013 @ 7:04pm

    No, Mike, corporations don't have First Amendment rights.

    First, I'm ALL FOR getting this information, but I don't fall for believing that mega-corporations are doing anything but manufacturing good publicity.

    Then there's the hideous notion Mike slips in that corporations have and are fighting for their First Amendment rights. But they're NOT persons, they're fictional entities that (formerly) existed only by permission of We The People, in order to serve our needs. -- If you accept that corporations DO have rights, then YOURS are necessarily vastly diminished, and you've lost most of the battle against the modern state, especially in the surveillance area. Corporations have no soul, conscience, or morals, are effectively immortal, can accumulate property indefinitely, and the really big ones also dodge taxes by keeping profits offshore. After Pfizer ruling, corps can not only lobby politicians for laws but openly bribe them to seize your property. YOU mere "natural persons" are so disadvantaged compared to corporations that you have no chance against one.

    Don't let Corporations slip in the poison pill that they have rights. They're not your champions, they're machines that will throw you live into meat grinders to make dog food soon as they make that "legal".

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, Aug 30th, 2013 @ 10:56pm

    Re: Re:

    Actually, FISA has been around much longer in one form or another. This isn't really a partisan issue, so much as a complex issue (as in, 'military-industrial complex').

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, Aug 30th, 2013 @ 10:59pm

    Re: No, Mike, corporations don't have First Amendment rights.

    Rights are not zero-sum.

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, Aug 30th, 2013 @ 11:55pm

    If they had the balls and truly wanted to "Do No Evil" they would publish first then fight.

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, Aug 31st, 2013 @ 2:03am

    Microsoft is flipping out, because everyone knows their latest 8.1 patch upgrades everyone to PRISM edition.

    It was all fun and games until the truth came out, aye Microsoft? Now no-one trusts your crappy spyware.

    reply to this | link to this | view in thread ]

  15. identicon
    Guardian, Aug 31st, 2013 @ 2:49am


    INSTEAD OF OHHH CANADA...put obama

    and the we stand on guard for thee
    change we spy on all for thee

    reply to this | link to this | view in thread ]

  16. icon
    R.H. (profile), Aug 31st, 2013 @ 9:23am


    While I do agree that, in the United States at least, corporations have enough power that if any major industry were seriously ticked off by a segment of law they could probably publicly flout it and get away with it; do we really want them to realize this?

    If a few major tech companies decided to just leak the NSL's and got away with it, it could seriously bite the public in the butt in the future. What happens when the interests of the corporations and those of the people don't coincide (as is normally the case)?

    That's a can of worms that I don't want to see opened. Let's hope that the courts rule in favor of governmental transparency on this one so we don't have to find out.

    reply to this | link to this | view in thread ]

  17. identicon
    Hans, Aug 31st, 2013 @ 1:06pm

    Clapper's resignation

    Still waiting for Clapper to "resign" for lying to Congress and violating his oath to uphold the Constitution....

    reply to this | link to this | view in thread ]

  18. identicon
    Loki, Aug 31st, 2013 @ 2:44pm

    Clapper has lied, under oath, on multiple occasions. I wouldn't trust anything that comes from him or his office.

    reply to this | link to this | view in thread ]

  19. identicon
    Eponymous Coward, Aug 31st, 2013 @ 4:09pm

    Re: Re:

    While I will agree that there will be unintended consequences with companies feeling enabled to flaunt the law, I don't agree, though, that they are unaware of this ability. One needs look at the banking industry, and multiple others, to see that some have been flaunting the law for profit a long time now. The difference here is that the profit motive, or ROI, for the tech companies to violate the law is much harder to predict, or even calculate at all. So we can say they are not financially incentivized to violate the NSLs, but are more compeled to do so for more moral reasons (at least IMO).

    Though, getting deeper into a more complex discussion, these tech companies can have their cake and eat it too if they really wanted. They can "release" this data, or enable its release through weak protection, and avoid liability. One way that comes to mind (and a way I wouldn't support) is for say a talented person at Microsoft to leak this in a way that it looks to be from a recently fired, and thus disgruntled, employee that once had access. If they would do such a thing they would enjoy plausible deniability while leaving someone else to take the blame. Another way is if Google notice they're getting unauthorized intrusions through a certain vulnerability to, instead of fixing the hole, to place the NSL metadata there where the hackers will easily find it. Again they'll enjoy plausible deniability that the company acted to release this.

    Honestly, we see our government(s) doing these very same things to us. They claim it's legal because in fact it is structured to be legal, but they allow for so much gray area knowing full well that it will be exploited. So while they follow the technical letter of the law they also piss all over the spirit of it to get what they want. My argument is a simple one: businesses should follow then the government's lead on this. They should follow the letter of the (bad) law, so as to not expose themselves to liability, but piss all over the spirit of it by subverting it in very intelligent ways.

    Though I will admit it's a fair argument to make to be careful for what you wish for for it might bite you in the ass!

    reply to this | link to this | view in thread ]

  20. identicon
    Anonymous Coward, Sep 1st, 2013 @ 8:16am

    Here is why the tech companies will fight this.

    A multi-trillion dollar market, that is why.

    Countries everywhere are looking for alternatives solutions that don't make them have to deal with the American tech companies and by proxy with the American government.

    Software and hardware companies will be hit on a wide range of applications, from telecommunications to software companies.

    There are signs already that others are plowing the field to dump American produced high tech equipment, services and software.

    And this is why they will do everything in their power to not be seen as in bed with the American government.

    reply to this | link to this | view in thread ]

  21. identicon
    Anonymous Coward, Sep 2nd, 2013 @ 11:58am

    Re: Re:


    Sorry but you are incorrect. President Bush did NOT create the FISA Court. That institution, for lack of a better term, was created under the Foreign Intelligence Surveillance Act of 1978, said act having been passed into law and signed when Jimmy Carter (a Democrat the last time I checked) was President.

    reply to this | link to this | view in thread ]

  22. identicon
    Anonymous, Sep 2nd, 2013 @ 6:15pm


    The companies could always claim they were hacked.

    reply to this | link to this | view in thread ]

  23. icon
    That One Guy (profile), Sep 3rd, 2013 @ 1:04am

    Re: Clapper's resignation

    Probably still looking around, weighing the various defense contract company 'offers' to see which one is the best.

    reply to this | link to this | view in thread ]

  24. identicon
    Anonymous Coward, Sep 3rd, 2013 @ 7:35am

    The transparency report would just read:

    FISA Requests = All data from all users.

    reply to this | link to this | view in thread ]

  25. identicon
    Anonymous Coward, Sep 3rd, 2013 @ 7:37am

    Re: Clapper's resignation

    Resign hell, I want to see him in prison for decades to come.

    reply to this | link to this | view in thread ]

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