Google's fight for transparency took an interesting turn earlier this month when it submitted a filing arguing that it had a First Amendment right to release more detailed NSA data request numbers as part of its transparency report. Now another tech giant has made the same argument before the FISA court.
CNET reports that Microsoft has filed a 9-page filing with the FISA court challenging the gag order that prevents the company from publishing the number of national security letters and other data requests it receives from the federal government.
In its filing, Microsoft notes that it has already worked to improve transparency, and therefore improve its reputation after the PRISM fallout, by publishing the number of data requests it receives from the FBI. As Google noted in its filing, however, those numbers are representative of federal data requests as it lumps federal and state requests into one giant opaque number that means little to nothing in the debate over NSA spy powers.
That's why Microsoft is now pushing to publish federal data requests separately:
"To promote additional transparency concerning the Government's lawful access to Microsoft's customer data, Microsoft seeks to report aggregate information about the FISA orders and FAA directives separately from all other local, state and federal law enforcement demands. Despite further efforts, however, Microsoft has not received permission from the FBI and the Department of Justice to disclose additional aggregate figures relating to any orders/or directives it may have received under FISA or the FAA. Specifically, the Government has denied Microsoft's request to disclose the following two aggregate figures: (1) the total number of orders and/or directives (if any) received under FISA and/or FAA; and (2) the total number of accounts affected by any such orders and/or directives (together, the "Aggregate Data").
As set forth below in greater detail, Microsoft respectfully submits that there is no statutory basis under FISA or the FAA for precluding Microsoft from disclosing the Aggregate Data. Further, to the extent FSIA or the FAA could be construed to bar such disclosure, such a construction would constitute a content-based restriction on speech that fails to satisfy strict scrutiny, in violation of the First Amendment."
The rest of the filling pretty much repeats the above a few times in different ways to really drive home that Microsoft thinks the government has no legal standing in this particular case. That may very well be true, but a little thing called executive privilege will probably prevent any serious fight to release the data. With it, the Obama administration can claim that publishing something as innocuous as "aggregate data" would pose a grave threat to the safety and security of the United States and its persons. In other words, the administration will argue that publishing a rough average of data request numbers will somehow let the terrorists win.
Still, it's an interesting argument and it could lead to some interesting back and forth between the tech industry and Washington. Google has seemingly not heard back yet on its request, but we'll let you know when and if either company hears back.