Google challenges secret court over gag order
In the world of technology companies, differentiating your product is everything. Apple, Yahoo, Microsoft, and Facebook have successively released statements about the National Security Agency鈥檚 PRISM Internet surveillance program using similar phrases to say the same thing: the company wishes it could disclose more about government data requests, but they do not have permission to do so.
Google has done something different.
As of Wednesday afternoon, Google stands as the only of the nine Internet service companies that has challenged the Foreign Intelligence Surveillance Court by to publish aggregate statistics of how many data information requests it received pertaining to national security. If Google鈥檚 motion is passed, it could then release numbers of how many Foreign Intelligence Surveillance Act (FISA) requests it received.
鈥淭he fact that Google has published its request [to FISC] suggests that this is both a legal and a PR maneuver,鈥� says David Pozen, a law professor specializing in national security law at Columbia University. It鈥檚 very unusual that a document relating to FISC proceedings has been made public, Mr. Pozen explains. But this is an unusual case. Usually, the court hears arguments from government attorneys trying to get permission for officials to gather information on someone who is perceived to be a national security threat. In this case, there is a third party in the courtroom 鈥撀燝oogle, the information provider. This means that Google鈥檚 lawyers may also privy to what is going on inside FISC.
The question now: Does Google鈥檚 interest in providing the public with information about the number of FISA orders that it has received outweigh the national security interest of keeping that number classified?
鈥淕oogle has a wealth of information just about routing data, when you e-mail, who you e-mail, which e-mail you read first,鈥� says Jane Bambauer, a law professor at the University of Arizona. The Electronic Communications Privacy Act prevents companies with access to user data from distributing it indiscriminately. But gag orders, like the one currently preventing Google and the other Internet providers in the PRISM surveillance program from disclosing FISA data request statistics, might not be in the public interest.
Google has already published the that it receives as part of its 2013 Transparency Report with the permission of the FBI, according to the company鈥檚 FISC motion. But FISA requests allow a different scope of surveillance, explains Ms. Bambauer. Under FISA, 鈥渢he government doesn鈥檛 have to prove that the person under surveillance has done anything wrong," she says, "just that they are associated鈥� with a foreign power group 鈥撀燼 broadly defined term that includes individuals viewed as national security threats to the United States.
鈥淚 think there is some information that can likely be made public without jeopardizing鈥� information that needs to remain classified for security reasons, Bambauer says.
Google鈥檚 court motion requests permission to publish both 鈥渢he total number of FISA requests it receives, if any,鈥� and 鈥渢he total number of users or accounts encompassed within such requests.鈥�
鈥淕oogle must respond to such claims with more than generalities,鈥� the motion reads. 鈥淭ransparency is a core value at Google and the company is committed to informing its users and the public about requests it receives from government agencies around the world for the production of users鈥� information and/or communications.鈥�
The court motion accuses the of mischaracterizing Google鈥檚 compliance with foreign intelligence surveillance requests, saying that the story 鈥渇alsely alleged鈥� that Google gave the government 鈥渦nfettered access to the records and communications of millions of its users.鈥� Google also characterized the of the Internet company鈥檚 role in the PRISM program as 鈥渕isleading.鈥�
The two articles relied heavily on leaked NSA documents and testimony from Edward Snowden, a former-NSA employee.
Besides hurting consumer faith in a company that has built its empire on being transparent, keeping a gag on Google and the other eight companies would set a harmful precedent by removing transparency in the broader discussion of data accumulation, Bambauer says.聽
