Google Inc. (GOOG:US), Microsoft Corp. (MSFT:US) and Yahoo! Inc. (YHOO:US) shouldn’t be allowed to publish how much data they turn over to intelligence agencies, the U.S. told a secret national security court.
Revealing such data “on a company-by-company basis would cause serious harm to national security,” Justice Department lawyers said in court papers made public yesterday.
The three companies, as well as Facebook Inc. (FB:US) and LinkedIn Corp. (LNKD:US), made the request to the Foreign Intelligence Surveillance Court in Washington. The court, which operates mostly in secret, issues warrants for collecting foreign intelligence inside the U.S. The companies are seeking an order allowing them to release the statistics without violating the Foreign Intelligence Surveillance Act.
The role of private companies in surveillance has come under scrutiny since Edward Snowden, a computer technician who was a contractor for the National Security Agency, disclosed this year that the agency is collecting millions of U.S. residents’ telephone records and the computer communications of foreigners from Google and other Internet companies under court order. Snowden is now in Russia under temporary asylum.
The companies’ request “would effectively give every communications provider in the United States the right to reveal the nature and scope of any FISA surveillance of their communications platforms,” government lawyers wrote.
“Such information would be invaluable to our adversaries, who could thereby derive a clear picture of where the government’s surveillance efforts are directed and how its surveillance activities change over time,” the government said.
Disclosing “FISA data in specific numbers and by specific FISA provisions, as the companies seek, would provide adversaries significant information about the government’s collection capabilities” and would allow them “to switch providers to avoid surveillance,” according to the government filing.
Google said in a statement it’s “disappointed that the Department of Justice opposed our petition for greater transparency around FISA requests for user information. We also believe more openness in the process is necessary since no one can fully see what the government has presented to the court.”
Microsoft “will continue to press for additional transparency, which is critical to understanding the facts and having an informed debate about the right balance between personal privacy and national security,” Dominic Carr, a company spokesman, said in an e-mailed statement.
The companies are seeking the court’s approval to disclose aggregate data on requests the U.S. makes under national security rules. They currently aren’t authorized to break out the number of requests they get for user data under national security statutes, as opposed to requests for information by law enforcement.
The “one aggregate bucket” approach of reporting both criminal and national security requests for information from providers demonstrates “that only a tiny fraction of their customers’ accounts” are subject to government intrusion, while not compromising spying methods, according to a statement by Andrew McCabe, the head of the Federal Bureau of Investigation’s national security operations, that accompanied the Justice Department’s filing.
Yahoo, the largest U.S. Web portal, said in June that it got as many as 13,000 requests for information from U.S. government agencies in the six months ending in May, with the most common types related to criminal investigations. Yahoo, based in Sunnyvale, California, said it couldn’t lawfully break out FISA requests.
The Justice Department brief was filed Sept. 30 and posted yesterday on the court’s website, with portions redacted.
The government contends that its intelligence-gathering has helped prevent numerous terrorist attacks in the U.S. and other countries.
Google, based in Mountain View, California, said in court papers filed in June that the U.S. Constitution’s First Amendment gives it the right to publish statistics including the total number of users or accounts affected by the government data requests.
The surveillance program disclosed by Snowden, code-named Prism, traces its roots to the warrantless domestic-surveillance efforts under former President George W. Bush. According to information provided by Snowden, Prism gathers e-mails, videos and other private data of foreign surveillance targets through arrangements that vary by company and are overseen by the panel of judges who work in secret.
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