Google, Microsoft and other major tech companies work with the NSA whenever the agency wants details on a target. That much is known. What’s not known is the scope of these requests for data as any information related to them is placed under a gag order.
While the government says that we can’t know the scope of these data requests, Google and Microsoft have started to fight back. Late last month, both companies filed arguments before the secret FISA court saying that they have a First Amendment right to publish the information. Now they have numerous new allies arguing in their favor.
In an amicus brief filed on Monday, a coalition of civil liberties groups argue that Google and Microsoft do indeed have a First Amendment right to release information related to the number of data requests they receive from the NSA. The coalition, which includes the First Amendment Coalition, the ACLU, the Center for Democracy & Technology, the EFF and TechFreedom, says that these companies can release surveillance data without impacting national security:
Google asserts that “no applicable law or regulation” bars it from making the disclosures it seeks to make. Amici also are not aware of any such bar but recognize that they have more limited information as to the procedures and rules applicable to the applications of the government and the rules of this Court and so do not address that issue as such. Instead, we aim(1) to highlight the fundamental First Amendment interests implicated by any rule, whatever its origin, that prohibits the disclosures that Google and Microsoft seek to make here; and (2) to emphasize the very heavy burden that the proponent of any such rule would have to sustain in light of the First Amendment’s requirements.Any rule precluding disclosure as to what a party itself is asked to do bears an extremely high burden of justification under broad principles protecting free expression even where the non-disclosure might be sought in service of national security. And those principles have, in fact, been applied in the closely related “National Security Letter” context to determine that even an explicit statutory prohibition on far more specific disclosures than those at issue here was un-constitutional. We write to put both these general principles and their specific application in this context before this Court. Amici believe that these First Amendment principles, when applied to the limited proposed disclosures—disclosures central to an ongoing national debate—argue strongly for the grant of the declaratory relief being sought.
In making this argument, we are not insensitive to concerns for national security. But even those important concerns do not easily, let alone routinely, trump the First Amendment. See, e.g., United States v. Morison, 844 F.2d 1057, 1081 (4th Cir. 1988) (Wilkinson, J., concur-ring) (“The First Amendment interest in informed popular debate does not simply vanish at the invocation of the words ‘national security’”). As Judge Gurfein recognized many years ago in his ruling in the Pentagon Papers case, “[t]he security of the Nation is not at the ramparts alone[but] also lies in the value of our free institutions.” United States v. New York Times Co., 328 F.Supp. 324, 331 (S.D.N.Y. 1971).
The “free institution” at risk here is nothing less than the guarantee of free expression contained in the First Amendment. The expression at issue on the present motions—speech by Google and Microsoft about their own conduct in responding to any government requests—is central to a significant political debate at the heart of self-government. It implicates the most fundamental First Amendment values and should yield only to a government interest of the highest order subjected to the most searching judicial inquiry. The government’s burden is a heavy one, as both broad principles of First Amendment law and narrower decisions issued in strikingly similar national security contexts make clear.
In short, these civil liberty groups are pointing to previous cases in which the courts said that concerns over national security didn’t trump First Amendment rights to publish information that could have been viewed as detrimental to said national security. They also point out how ridiculous it is that the government won’t let these companies publish what amounts to a rough estimate of data requests instead of the hard numbers. The courts have already ruled in favor of publishing far more detailed reports regarding government activities (i.e. Pentagon Papers), so it shouldn’t be a problem to publish numbers that don’t really tell us anything.
The most ridiculous part about all of this is that this shouldn’t even be a First Amendment issue, but rather a common sense issue. Google and Microsoft are only wanting to protect their reputation from accusations that they work hand-in-hand with the NSA to hand over data on all Americans. These companies can say they don’t until their PR folks are blue in the face, but it doesn’t change the fact that we have leaked, but ambiguous, documents that say they do. By publishing more accurate numbers, these companies can restore some of the trust it lost upon publication of the leaked documents.
It’s not like the government doesn’t have anything to lose in this either though. By allowing these companies to publish aggregate data, the NSA can fight back against the public opinion that says it’s an agency lacking in oversight. You would think the government would want to reassure its people that its spy agencies aren’t running wild, but every action taken so far by the Obama administration have suggested the opposite.[h/t: The Hill]