Arik Hesseldahl

Recent Posts by Arik Hesseldahl

Microsoft and Google Will Sue U.S. Government Over FISA Order Data

In their ongoing wrangle to win the right to disclose more information about government requests for user data, Microsoft and Google said they will sue the U.S. federal government.

The move was announced in a Microsoft corporate blog post by General Counsel Brad Smith. In it, he writes that the two companies “remain concerned with the government’s continued unwillingness to permit us to publish sufficient data relating to Foreign Intelligence Surveillance Act (FISA) orders.”

Both Microsoft and Facebook have published ranges of numbers concerning the requests they have gotten from governments at the federal, state and local level.

But since the revelation of the PRISM surveillance program by former NSA contractor Edward Snowden, they’ve been in an ongoing tussle with the government over disclosing just how many times they’ve been subject to requests to disclose information on users under FISA. Disclosing the data, they have argued, would go a long way toward defending their reputations with customers in the area of user privacy. Government agencies have so far refused the requests of Microsoft and others to release more granular data, arguing that to do so could harm national security interests.

“On six occasions in recent weeks we agreed with the Department of Justice to extend the government’s deadline to reply to these lawsuits,” Smith wrote. “We hoped that these discussions would lead to an agreement acceptable to all. While we appreciate the good faith and earnest efforts by the capable government lawyers with whom we negotiated, we are disappointed that these negotiations ended in failure.”

Now the two companies will resort to the courts. Smith didn’t say whether or not a lawsuit has been filed, or in which court they plan to file.

Smith wrote that Microsoft sees it as “vital” that it be allowed to publish information that shows exactly how many requests for user data were made under FISA rules. In those instances, companies like Microsoft, Google and Facebook are required to comply and have scant legal grounds to contest the order. The orders are handed down by the Foreign Intelligence Surveillance Court, which meets in secret.

“We believe it’s possible to publish these figures in a manner that avoids putting security at risk,” Smith wrote. “And unless this type of information is made public, any discussion of government practices and service provider obligations will remain incomplete.”

That sentiment was echoed in a statement issued by Google: “While the government’s decision to publish aggregate information about certain national security requests is a step in the right direction, we believe there is still too much secrecy around these requests and that more openness is needed. That’s why we, along with many others, have called on the U.S. government to allow us to publish specific numbers about both FISA and NSL requests.”

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I think the NSA has a job to do and we need the NSA. But as (physicist) Robert Oppenheimer said, “When you see something that is technically sweet, you go ahead and do it and argue about what to do about it only after you’ve had your technical success. That is the way it was with the atomic bomb.”

— Phil Zimmerman, PGP inventor and Silent Circle co-founder, in an interview with Om Malik