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Monday, September 9, 2013

Tech Companies Escalate Pressure on Government to Publish National Security Request Data

As more details emerge about how the government spies on online data, technology companies are escalating their efforts to publicly disclose information about government data requests.

On Monday, Yahoo and Facebook each filed suit in the secret Foreign Intelligence Surveillance Court to ask the government for permission to reveal information about the number and types of national security requests for user data that the companies receive. Meanwhile, Google and Microsoft, which filed suit in June to ask for this permission, amended their petitions Monday to compel the government to publish even more detail about the requests.

The legal moves are partly a public relations effort, as new reports have revealed the extent of the cooperation between tech companies and the government. The companies hope to show that government requests affect just a small percentage of their users, and to bring transparency to a very secretive process. When reports about a program called Prism and the government’s other spying efforts first came out, tech companies had limited ability to respond because they are not allowed to talk about even the existence of a national security request.

“To appropriately and effectively respond to these inaccurate news reports and the related public concerns, Facebook seeks to be as transparent as possible regarding its receipt of orders,” Facebook’s motion said.

Two weeks ago, the Office of the Director of National Intelligence said it would release more data about national security requests, a move the companies said did not go far enough.

“We believe that the U.S. government’s important responsibility to protect public safety can be carried out without precluding Internet companies from sharing the number of national security requests they may receive,” Ron Bell, Yahoo’s general counsel, wrote in a company blog post. “Ultimately, withholding such information breeds mistrust and suspicion â€" both of the United States and of companies that must comply with government legal directives.”

Still, while releasing detailed numbers of national security requests would shed some light on the topic, it would be only a small data point about the government’s broad spying. And despite their public efforts to push back, privately the companies are still compelled by law to cooperate with the government on many such data requests.

Also Monday was the first meeting of a group President Obama formed in August to discuss technology surveillance, the Review Group on Intelligence and Communications Technology. Representatives of Google, Microsoft, Facebook, Yahoo and other companies attended, in addition to experts on intelligence and privacy.

In a blog post, two Google lawyers who attended the meeting summarized the message they said they would present there: “that the levels of secrecy that have built up around national security requests undermine the basic freedoms that are at the heart of a democratic society.”

Google’s amended petition asked that the government let it report national security request data every six months instead of every year; publish the types of requests it received, like requests for business records or wiretaps; and conduct oral arguments about the issue in open court. Microsoft’s petition made similar demands, including asking for permission to reveal whether requests asked for user data like the text of an e-mail or metadata like subscription information.

The companies also argued that they have a First Amendment right to publish data on government requests, and that disclosing this information would not imperil national security because the online services have so many users that it would be impossible to decipher whom the requests targeted.

In June, soon after the Prism revelations, the government gave the companies permission to publish for the first time the number of national security requests they received, but only if they were grouped with all other requests, including those from state and local governments and for criminal cases. Google called this a step backward because combining national security data with other data made it impossible to glean relevant information.

In recent weeks, negotiations with the government fell apart, several of the companies said.

In response to the original motions from Google and Microsoft, the government asked for six extensions to consider their requests. Late last month, the Office of the Director of National Intelligence said it would release annually the number of national security requests and the number of people they targeted, but not break them out by company or indicate the type of user data requested.