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Google To Justice Department: Let Us Publish National Security Requests

BY Sarah Lai Stirland | Tuesday, June 11 2013

Google's Chief Legal Officer David Drummond on Tuesday published an open letter addressed to Attorney General Eric Holder and FBI Director Robert Mueller asking for permission to publish the number and scope of national security-related requests that it receives.

In effect, the company is asking the government to lift a gag, imposed in the name of national security, on disclosing the extent to which the search-engine giant passes along user information to the federal government.

"Assertions in the press that our compliance with these requests gives the U.S. government unfettered access to our users’ data are simply untrue," Drummond wrote. "However, government nondisclosure obligations regarding the number of FISA national security requests that Google receives, as well as the number of accounts covered by those requests, fuel that speculation.

"We therefore ask you to help make it possible for Google to publish in our Transparency Report aggregate numbers of national security requests, including FISA disclosures—in terms of both the number we receive and their scope. Google’s numbers would clearly show that our compliance with these requests falls far short of the claims being made. Google has nothing to hide."

FISA refers to the Foreign Intelligence Surveillance Act, one of the laws under which the National Security Agency and the FBI operate their terrorist surveillance activities. Surveillance authorized by FISA is overseen by a FISA court, where judges rule in secret. Lawmakers are pushing to declassify some opinions of that court.

Both The Guardian and The Washington Post published a series of articles last week exposing the extent of the NSA's surveillance activities, which are meant to narrowly focus on suspected terrorists abroad. Both publications report these activities have been less discriminating, and sweep across millions of phone calls and Internet communications domestically intermediated by America's biggest tech companies and brands: AOL, Apple, Google, Facebook, Microsoft, Skype, Yahoo and the video chatting service Paltalk. All of these Internet companies have denied any knowledge of the Internet surveillance, dubbed PRISM.

Google has been publishing biennial aggregate data on the number of law enforcement requests for user information and content takedown notices from copyright owners that it has received since 2009. Other companies such as Microsoft and Twitter (whose chief lawyer is a former Google lawyer) have followed Google's lead with their own global transparency reports.

Google made a minor breakthrough in transparency on this front in March when it announced that it was from then on also going to publish the approximate number of orders demanding user information for national security investigations that it receives from U.S. law enforcement authorities, called National Security Letters. The company is also publishing the approximate number of accounts that law enforcement authorities in the U.S. are seeking to access under those letters.

The recipients of such orders are generally supposed to keep them secret. A federal judge ruled that gag orders associated with NSLs are unconstitutional, but her ruling is stayed pending appeal. The ruling was publicly released 10 days after Google's announcement it would disclose approximate figures related to NSLs.

Drummond's Tuesday request specifies that he wants to publish a broader classification of information, meaning the scope of the requests -- in order to demonstrate that the company doesn't disclose the extent of the information alleged in public reports. The Guardian's report last Thursday said that the Prism system enables NSA officials to access users' "search history, the content of emails, file transfers and live chats."

Google was the first company to make the request of the DOJ. Asked whether Microsoft is taking any action to provide more transparency on how it discloses customer data, Angie Lunde, a spokeswoman for the company, sent the following response:

"Permitting greater transparency on the aggregate volume and scope of national security requests, including FISA orders, would help the community understand and debate these important issues. Our recent report went as far as we legally could and the government should take action to allow companies to provide additional transparency."

Facebook on Tuesday made a similar request to Google's, according to The Washington Post.

A broad coalition of civil society groups on Tuesday also launched a campaign called Stop Watching Us to urge the U.S. Congress to reform U.S. surveillance law, and to perform an investigation on the extent of the NSA's surveillance. Alex Fowler, the Mozilla Foundation's global privacy and public policy leader, said in a conference call Tuesday that he's had conversations with individuals in the private sector and working to bring them on as supporters.

Under current law, a semi-independent agency known as the Privacy and Civil Liberties Board is meant to oversee the nation's surveillance activities. The board was originally created in 2004, but under the Obama administration hasn't performed its oversight duties because Congress failed to confirm a chairman until mid-May. He is David Medine, formerly of the Consumer Financial Protection Board.