Government Reaches Agreement with Tech Companies on Surveillance Demands

January 28, 2014

After months of public outcry in response to the ongoing revelations about sweeping government electronic surveillance programs, the Obama administration announced an agreement this week with leading tech companies, including Apple, Google, Facebook, and Microsoft, that would allow the companies to disclose to customers more information about their compliance with government demands for information.  It was first revealed this past summer that the government obtains large amounts of information about the phone and internet usage of customers of the companies through secret national security demands. These demands are primarily issued through National Security Letters (“NSLs”) sent by the FBI, or FISA orders authorized by the Foreign Intelligence Surveillance Court. Tech companies have been pushing back against the government to ease restrictions on public disclosure about the demands since news first broke revealing the previously unknown extent of info the government has sought from the companies.

The agreement will allow companies to disclose more information to customers

The agreement will now allow companies to report each category of information demands received, as long the number of requests received is reported in incremental ranges of one thousand; such that a company that received 1,500 National Security Letters would report 1,000-2000. Companies also have the option to report numbers in more specific 250 digit increments, but must combine several categories of different types of requests into one number to do so. The agreement also allows companies to share how many customer accounts are affected by the requests. The new reporting agreement still only allows companies to disclose how many requests they received, but not what information or how much data was actually turned over in response to each. Companies can share the information “every six months, with a six-month delay. So data published at midyear would cover the last half of the previous year.”  The agreement forbids start-up companies from sharing information about government requests for two years. Apple promptly published their updated disclosures with their announcement of the agreement.
In return for the concessions in the agreement, Google, Microsoft, Yahoo, and Facebook have agreed to drop a lawsuit filed against the government in the Foreign Intelligence Surveillance Court seeking greater freedom to disclose information about their compliance with the demands. The suit reflects increasing industry concerns about possible negative customer reaction to the privacy issues.
The agreement comes as the second high-profile Administration action taken in the past week to help ease critics of the surveillance programs and answer calls for greater transparency in the programs. However, the agreement only addresses demands for data on customer internet usage, leaving untouched the highly-publicized government surveillance of phone data. Those looking for greater transparency also criticized the agreement’s restrictions on reporting that require the use of broad numbers, often in the aggregate. Although some opponents of the programs view the agreement as a first step towards necessary changes, many challenges to the NSA programs remain, including legislative reform proposals.