wednesday, 8 october of 2014


Google, Technology Firms Say Ungag Us on U.S. Spy Orders

Google Inc. (GOOG), Facebook Inc. (FB) and other technology giants are seeking a court ruling that may allow them to disclose more about the user information they’re being forced to share with U.S. spy agencies.

Eight months after reaching a compromise with the Obama administration for limited disclosures about government demands for user information in terrorism investigations, the companies are urging a U.S. appeals court today to rule their free-speech rights are violated by a federal statute that allows the government to secretly force them to turn over data and prevents them from talking about it.

The U.S. Justice Department, which lost in a lower court when a judge ruled the statute unconstitutional, argues that the law shields national security investigations from the eyes of terrorists, a consideration that trumps First Amendment concerns.

“More than any other industry President Obama has tried to enlist tech companies’ support for his administration,” said Jonathan Turley, a constitutional law professor at The George Washington University Law School. “This is one of the major rifts that have developed with the industry despite all the efforts of the administration.”

Today’s hearing before the U.S. Court of Appeals in San Francisco comes a day after Twitter Inc. (TWTR) sued the government for blocking it from going public with details about spy agency orders for user data.

National Surveillance

The San Francisco-based social media company, which says its free speech rights have been trampled, is seeking to publish precise numbers of government requests and describe to customers its exposure to national surveillance, according to a complaint filed yesterday in federal court in San Francisco.

Both court cases are part of an effort by technology companies to be able to tell users how much information they supply to spy agencies, following revelations by former government contractor Edward Snowden about the extent of U.S. surveillance programs.

The court battles come as Google and Apple Inc. (AAPL), under increasing pressure to prioritize consumer privacy, have marketed the encryption technology built into their latest smartphones as a safeguard against government snooping and hackers. Google and Facebook are also supporting legislation that would rein in the National Security Agency’s bulk collection of Internet data and allow companies to divulge more about the government’s demands for the information.

FBI Demands

At issue in today’s hearing are challenges to Federal Bureau of Investigation demands for user information called “national security letters,” which call on companies -- without court approval -- to supply records about calls made and received from land lines and mobile phones, e-mail addresses and screen names.

The FBI issued 21,000 such letters in fiscal year 2012. The 2001 Patriot Act significantly expanded the FBI’s authority to issue the letters by allowing special agents in field offices instead of Justice Department officials in Washington to approve a letter.

Recipients of the letters are barred from discussing them. That violates free-speech rights, U.S. District Judge Susan Illston in San Francisco ruled in March 2013 in a lawsuit brought by a phone-service provider that received a letter. She put her ruling on hold while the government appeals it. Because recipients of the letters are forbidden from discussing them openly, the identity of the phone company isn’t public.

Illston’s Ruling

Three weeks after Illston’s ruling, Google challenged national security letters in a lawsuit filed in federal court in San Francisco. While the case was put under seal, Illston made public a ruling in a lawsuit involving an undisclosed plaintiff filed the same day as Google’s in which she denied a petition to set aside 19 national security letters, saying her earlier ruling against NSLs was on hold and the government had met its burden to enforce the information demands. That ruling is also being appealed.

The U.5. argues the non-disclosure provision of the National Security Letter law serves a compelling government interest.

“Congress clearly wanted the government to have NSLs as a tool to thwart terrorism and espionage regardless of what, if any, limitations the Constitution places on nondisclosure requirements,” Justice Department lawyers said in a court filing.

Under a deal that Google, Facebook, LinkedIn Corp. (LNKD), Microsoft Corp. (MSFT) and Yahoo! Inc. (YHOO) reached in January with the Justice Department, recipients of national security letters can disclose in bands of 1,000 the number they receive, such as “0 to 999,” every six months.

National Security

Google, Facebook, Microsoft and Yahoo aren’t directly involved in the cases being argued today. In filings supporting the undisclosed firms challenging the letters at issue, the technology companies say they should be allowed to disclose more information about the volume, scope and type of national security letters demanding information about their users.

“The government has sought to participate in public debate over its use of the NSL statute,” lawyers for the companies said in a friend-of-the-court filing. “ It should not be permitted to gag those best suited to offer an informed view-point in that debate: the parties that have received NSLs.”

The cases are Under Seal v. Holder, 13-15957 and 13-16731 and Under Seal v. Holder, 13-16732, U.S. Court of Appeals for the Ninth Circuit (San Francisco)

(Published by Bloomberg - October 8, 2014)

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