First Amendment rights, cry tech companies in fight against redacted FISA motion

May I… ? No. Why not? Because I said so.

If you are a parent, you may have tried that tactic. If you were a kid who heard that reason, then you know it’s entirely unsatisfactory. It is that type of FISA conversation from Big Brother that little-brother tech companies Microsoft, Google, Facebook, Yahoo and LinkedIn are fighting against. Now those companies are suing the government by claiming that by not sharing “why its assertions are facts,” the government is depriving “the providers of their First Amendment rights.”

This all circles back to PRISM revelations courtesy of Edward Snowden, and the tech companies wanting to set the record straight that they don’t give the government direct access to their servers. Individually, they filed motions with the U.S. Foreign Intelligence court, asking to disclose “aggregate statistics” about the number of requests for user data that they receive under the U.S. Foreign Intelligence Surveillance Act. The tech companies then banded together and it’s been an ongoing legal battle.

Just because the government says so is not good enough. Instead of keeping the reasons a secret, the government did share its arguments with the court in September; yet it chose to black out those arguments with a heavily redacted motion so tech companies couldn’t see them. The tech giants have maintained all along that not allowing them to publish aggregate numbers violates free speech.

Surprise — or not so much at all — “the government has made no effort to explain how sharing those reasons with the providers or their counsel would endanger national security.” The tech companies concluded that “unless the government agrees to take appropriate steps to permit counsel for the providers to access the unredacted version,” then all the redacted portions of the September 30 filing should “be stricken.”

FindLaw previously pointed out that “at Microsoft, John Frank has Department of Defense Top Secret clearance ‘for the purpose of facilitating Microsoft’s interaction with the Government concerning classified matters’.” And “at Google, general counsel Kent Walker has FBI Secret clearance, while legal director Richard Paul Delgado has Top Secret clearance with the FBI.” Yet these same people can’t be trusted to see unredacted versions of the government’s legal argument?

Sure, tech companies are miffed, which is good for them on numerous levels, including staying connected to how it feels to be among We the small People. Regular Janes and Joes are always kept on the outside, trying to see through a fogged up window at the truth on the inside…unless someone like Edward Snowden clues us in with leaked dirt.

Microsoft published the first six months of law enforcement requests for user data; it was the Redmond giant’s second such report. In September, the company noted, “we are not currently permitted to report detailed information about the type and volume of any national security orders (e.g. FISA Orders and FISA Directives) that we may receive so any national security orders we may receive are not included in this report.” It received 7,014 for the U.S., which affected 18,809 user accounts. The post concluded with Microsoft’s commitment “to respecting human rights, free expression, and individual privacy.”

Regarding privacy and FISA, Microsoft previously said it believes “greater transparency on the part of governments – including the U.S. government – would help the community understand the facts,” and then mentioned trying to “secure permission” to tell us by “filing legal action with the U.S. government.” The man formerly in charge of Microsoft’s privacy policy for 40 countries called such claims of transparency “purely public relations strategy – corporate propaganda aimed at the public sphere.” Caspar Bowden, exercising free speech, made it abundantly clear that he now does not trust Microsoft or its software.

Lastly, the Department of Justice filed an appellate brief in the U.S. 4th Circuit Court of Appeals regarding the Lavabit surveillance case. At nearly 60 pages, it systematically “attacked” Ladar Levison and Lavabit’s arguments. Among other things, the DOJ wrote:

Just as a business cannot prevent the execution of a search warrant by locking its front gate, an electronic communications service provider cannot thwart court-ordered electronic surveillance by refusing to provide necessary information about its systems. That other information not subject to the warrant was encrypted using the same set of keys is irrelevant; the only user data the court permitted the government to obtain was the data described in the pen/trap order and the search warrant. All other data would be filtered electronically, without reaching any human eye. Finally, Lavabit’s belief that the orders here compelled a disclosure that was inconsistent with Lavabit’s “business model” makes no difference. Marketing a business as “secure” does not give one license to ignore a District Court of the United States.

Paul Rosenzweig wrote on Lawfare, “Frankly, the statement of facts is pretty damning for Mr. Levison.”

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