Google Says It Has A First Amendment Right To Release NSA Data Request Numbers

    June 23, 2013

UDPATE: It was revealed Wednesday that Microsoft has also filed a motion claiming a First Amendment right to publish federal data request numbers.

Original Story Below:

For the past two weeks, Google has been petitioning the government to allow it to publish the exact number of data requests it receives from the NSA. There’s not been a lot of progress made on that front, but now Google is pulling out the big guns in attempt to force transparency.

In a recent filing, obtained by The Washington Post, before the Foreign Intelligence Surveillance Court, Google argues the gag order that prevents it from publishing the number of data requests it receives is unconstitutional. In particular, Google says that such gag orders violate its First Amendment rights:

“Google seeks a declaratory judgment that Google has a right under the First Amendment to publish, and that no applicable law or regulation prohibits Google from publishing, two aggregate unclassified numbers: (1) the total number of FISA requests it receives, if any; and (2) the total number of users or accounts encompassed within such requests.”

Do you think Google is in the right? Does it have a First Amendment right to release these numbers? Let us know in the comments.

Now, why is this so difficult? What’s wrong with publishing nothing but numbers? Well, it may seem kind of silly to you, but the government argues that even publishing the exact number of data requests it sends would put the nation in danger. Google isn’t asking to publish any specific requests nor it it asking to reveal inner workings of its relationship with the NSA. Google is only asking to publish some numbers, and that has thus far proven to be incredibly difficult.

In the last week, we’ve seen the government slightly budge on the issue. Facebook, Apple and Yahoo all published statements that listed a ballpark figure of data requests it receives from local, state and federal governments. Google was presumably allowed to publish the same figure, but it refrained because “lumping national security requests together with criminal requests … would be a backward step for our users.”

Google took that stance because it already publishes the amount of national security letters it receives from the government. Well, it can publish ballpark figures that say it received between 0 and 999 requests for user data in 2012. It’s not exactly helpful and lumping those figures in with criminal requests would make the numbers even more opaque.

The core argument here is that publishing these wide ranging numbers doesn’t do the public or Google any good. Sure, Google could say it receives anywhere between 9,000 to 12,000 data requests per year, but we wouldn’t know if those requests were from local law enforcement or the NSA. In turn, that unknown factor would only serve to increase consumer distrust for Google and drive them away to competitors.

What makes this all the more silly is that Google isn’t even asking to publish the exact number of data requests. As per the filing, here’s what Google would like to publish:

“Google’s publication would disclose numbers as part of the regular Transparency Report publication cycle for National Security Letters, which covers data over calendar year time periods. There would be two new categories to cover requests made under FISA: (a) total requests received and (b) total users/accounts at issue. Each of these entries will be reported at a range, rather than an actual number. That range would be the same as used by Google in its reporting of NSLs currently, in increments of one thousand, starting with zero. As with the NSL reporting, Google would have a Frequently Asked Questions section that would describe the statutory FISA authorities themselves.”

That doesn’t sound bad at all. The government already lets Google publish a ballpark figure for national security letters, so why not this? What’s the problem with making the federal government more transparent? Doing so would benefit not only the Obama administration’s declining reputation, but it would also immensely help Silicon Valley as well.

As was argued last week, tech companies have just as much to lose from the government keeping quiet as we do. Publishing opaque data request numbers may initially look good for the likes of Facebook and Apple, but Google is taking the higher ground here. It’s fighting to publish these numbers to advance the public debate over the NSA “in a thoughtful and democratic manner.” Lord knows the issue of NSA spying powers needs that right now.

Do you think Google should be allowed to publish data request numbers? Would it really impact national security? Let us know in the comments.