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Internet companies fight to release more information on NSA requests

Posted at 8:00 AM, Sep 10, 2013
and last updated 2013-09-09 20:29:01-04

WASHINGTON (CNN) — Microsoft and Google are getting help from other tech companies in their fight to release more information about government surveillance orders, which companies say is their First Amendment right to provide.

On Monday, Microsoft and Google were joined by Yahoo and Facebook in asking the Foreign Intelligence Surveillance Court to allow them to make public aggregate data listing the number of court-ordered records requests, including those made for criminal and national security investigations.

The companies, in court filings made with the surveillance court, portrayed the government’s attempt to block them from publishing more detailed data as a version of prior restraint, infringing their right to exercise their First Amendment rights. The move seeks to set a high bar for the government to stop publication, akin to the Nixon administration’s failed attempt to stop newspapers from publishing the Pentagon Papers.

According to the companies’ court filings, the data isn’t classified, but the government seeks to prevent publication on national security grounds. They argue there are ways for them to tell their customers more about the government’s requests, with broad statistics every six months, without compromising individual security investigations.

The companies argue that they are acting to correct the public record on national security requests they are compelled to obey. They cite disclosures by Edward Snowden, a fugitive former National Security Agency contractor who says he leaked thousands of documents on government surveillance, which has led to erroneous news stories, the companies say. All say they do not allow the government direct access to their computer servers.

Google in its filing says, “Notwithstanding Google’s complete denial, the revelations about the scope of the NSA activities, and false or misleading stories about Google’s alleged involvement in such activities, have continued unabated and continue to cause substantial harm to Google’s reputation and business.” The other companies also said their businesses were being harmed by not being allowed to provide more information.

In the court filings, the companies are asking to publish how many government data requests are for content and how many are for so-called metadata, which includes information such as the sender and receiver of e-mails and phone calls, and the time and date when they are sent or made. Google and Microsoft also asked to make oral arguments on the legal fights; Google asked that the court, which normally conducts its proceedings in secret, allow arguments open to the public.

James Clapper, director of national intelligence, has said the agency plans to publish broad data on criminal and national security surveillance requests. But that data wouldn’t show requests made to each company.

The legal tussle came as the technology company officials went to the White House as part of a new “working group” focusing on transparency. The Obama administration has defended the NSA’s surveillance activities, saying they are necessary to prevent terrorism and protect national security. But President Barack Obama has acknowledged the need for greater transparency and invited companies to help come up with new ways to disclose more.

Microsoft and Google first made their request to publish surveillance data in June and then spent the last few months negotiating with the government. After failing to reach an agreement, the companies got permission from the surveillance court to make new legal filings. The deadline for those filings was Monday.

The Justice Department declined to comment on the case.

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