Thursday, September 5, 2013, by Brittany Croom
As transparency initiatives continue to infiltrate the nation following recent revelations of surveillance by US intelligence, some tech companies are already taking a stand. Only a few days after social media giant, Facebook, revealed the US government has already made information requests for 20,000 users under the Foreign Intelligence Surveillance Act (“FISA”)this year alone, two other tech companies announced they would soon be heading to court. After failed negotiations with the US Justice Department that spanned three months, Microsoft and Google will continue with a lawsuit to allow public disclosure of FISA orders, despite the statute’s gag order. Not surprisingly, both companies routinely field high volumes of surveillance requests pertaining to email, Skype, cloud services, and several other technology platforms. Google, for example, handled more than 31,000 requests in 2012.
According to Smith, both companies “remain concerned with the Government’s continued unwillingness to permit . . . publish[ing] sufficient data relating to Foreign Intelligence Surveillance Act (FISA) orders.”
The Foreign Intelligence Surveillance Act, established in 1978, requires the government obtain search warrants and wiretap orders from the FISA court by proving the surveillance is to gather information about foreign intelligence. The Act was established as a mechanism to protect the nation from foreign threats, including, but not limited to, foreign spies and terrorists. The statute does not require the government tell the individual that he or she was ever under surveillance and companies that receive such warrants, such as Microsoft and Google, are subject to gag orders that prohibit them from sharing this information.
This decision to sue closely follows the recent reveal of Microsoft’s special relationship with the US government—one that allowed the government access to user’s information by avoiding encryption mechanisms. Users of the technology platforms have become concerned following these allegations, and tech companies are now pushing for disclosure. Google and Microsoft will continue with the lawsuit to further their transparency initiatives. Despite the government’s agreement to publish surveillance requests in the future, this fails to provide the transparency Google and Microsoft hope to achieve. General Counsel of Microsoft, Brad Smith, recently commented on the issue:
“[W]e believe it is vital to publish information that clearly shows the number of national security demands for user content, such as the text of an email. These figures should be published in a form that is distinct from the number of demands that capture only metadata such as the subscriber information associated with a particular email address. We believe it’s possible to publish these figures in a manner that avoids putting security at risk. And unless this type of information is made public, any discussion of government practices and service provider obligations will remain incomplete.”
Google and Microsoft are certainly not alone. Others agree that the government’s proposed publications plans are not enough. The two enterprises will now move forward with a lawsuit that will allow them to notify the public of the information they provide to the government pursuit the Foreign Intelligence Surveillance Act. According to Smith, both companies “remain concerned with the Government’s continued unwillingness to permit . . . publish[ing] sufficient data relating to Foreign Intelligence Surveillance Act (FISA) orders.”