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:
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.
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.
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.
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....