What Are The Tech Giants Doing In The FISA Court? Part 2: The Fight for Transparency

Now that you have the background, let’s take a closer look at what’s going on.

Google, Facebook, Microsoft and Yahoo! are justifiably concerned about their image, given the worldwide negative publicity that has fanned the flames on invasions of privacy – especially considering the allegations that they’ve been “green lighting” the government’s massive collection of user data.

In the eyes of the companies, the intense news coverage about the program has trended more toward reinforcing the impression that the industry is in partnership with the government, rather than more fairly portraying them as complying with lawful government requests. Such media coverage, they claim, has harmed their reputations and businesses, and could best be described as “inaccurate,” “misleading,” “erroneous,” “mischaracterizations” and “false.”

To increase transparency and ease the concerns of their users about the NSA’s Internet surveillance activities, all of the companies want the ability to disclose certain aggregate data about the number of national security requests they receive over a  six month or annual period, as well as the number of accounts affected by those requests. But even though that information hasn’t been classified by either the FBI or the Justice Department, the government is prohibiting the companies from releasing such information, and has indicated that it considers the publication of such information to be unlawful.

Meanwhile, in August, the Director of National Intelligence announced, “in the interest of increased transparency,” that the government would release its own aggregate information about the total number of orders issued and the number of targets affected by them over a 12 month period.

Internet Giants File Motions with FISA Court Seeking Declaratory Judgments

While the companies welcomed the government’s decision to release aggregate numbers concerning requests across all providers, they would like more “granularity” as it relates to their own users.

For that reason, shortly after the original stories came out, Google and Yahoo! filed separate motions with the FISA court seeking declaratory judgments allowing them to publish their own aggregate numbers. And throughout the summer, the companies continued to negotiate with the government in an attempt to reach a consensus that balanced the government’s national security concerns against the companies’ goals for increased transparency in reporting.

But after the FISA court approved six extensions of time for the government to respond to Google’s motion, allowing for more negotiations, it became clear that an impasse had been reached. At that point, the parties asked the court to stay the proceedings so Google could amend its motion and the others could file similar motions.

Next week, in Part 3, we’ll examine arguments.

Image credit: Digiphile

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