What Are The Tech Giants Doing In The FISA Court? Part 3: Users and “Narrowly Tailored” Arguments

Part 1 explored the background, Part 2 took a closer look and explored the fight for transparency. In this last part, we’ll take a look at the arguments, specifically the “narrowly tailored” argument.

Essentially, the companies are making the same request, all framed around the same legal issues. In short, they argue that the government’s prohibition is not supported by any statute or regulation, and in any event, disclosure is protected by the First Amendment.

The statutory argument is pretty straightforward. Neither FISA nor the FISA Amendments Act (FAA) forbids the publication of aggregate data by Internet providers. Since the purpose of the confidentiality provisions contained in these statutes is to protect the secrecy of the government’s surveillance as it relates to specific targets, no particular target could possibly be “tipped off” by the release of such data.

By even a conservative count, these companies all boast in the area of half a billion to one billion users. Thanks to Snowden, the surveillance cat is out of the bag; the fact of pervasive government surveillance of Internet usage is known far and wide.

Frankly, even without Snowden it should have been apparent that, at the very least, this kind of information gathering would be high on the government’s wish list. So it’s difficult to see how one evil guy with a laptop sitting in some basement somewhere would think “Uh oh! They’re on to me!” if Facebook happened to report that it received a total of 9,000 FISA requests affecting approximately 30,000 of its users over the past six months.

In addition to the statutory-based argument, the companies argue very persuasively that prohibiting them from publishing such aggregate numbers is a content-based restriction of speech that does not satisfy the strict standard of review required under the First Amendment.

Citing Doe v. Mukasey, everyone agrees that national security is a compelling government interest. However, the companies argue that the prohibitions issued in these instances are not “narrowly tailored” to promote that interest. Facebook alone has over one billion users. As it points out in its motion in reference to another federal case, “the plausibility of the notion that disclosure of the receipt of government-issued national security orders may compromise a national security investigation diminishes as the size of the recipient’s customer base grows.” Couple this with the fact that the government itself has set out to release aggregate numbers covering all FISA requests issued, the government’s case looks shaky.

In an interesting twist to go along with the topic at hand, a new bill was recently introduced by Senator Leahy (D-VT) and Representative Sensenbrenner (R-WI) that would, among other things, grant the tech giants permission to disclose the exact information they are asking of the FISA court in these filings. Stay tuned for more on this development.

For now, it remains to be seen if the court will allow Google, Facebook, Microsoft and Yahoo! to parse out and report on this data. Doing so not only helps them better defend themselves in the eyes of their users and the general public, but it would also demonstrate a collective move from both sides to more transparency. Talk would be backed up by action.

One thing is clear: transparency is not achieved when the ability to communicate generic information is restricted to the state.

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