Google on Firm Constitutional Ground in Secrecy Fight With FISA Court

NEWS ANALYSIS: Google, a target of demands for info through secret warrants from U.S. security agencies, wants to say what it's being asked for, within limits.

Google has filed a motion in the Foreign Intelligence Surveillance Court requesting a declaratory judgment that would release it from the requirements in secret court orders that bar it from making any public mention of government demands for user information.

In the motion, Google asserts that it has a First Amendment right to publish unclassified numbers, in this case the total number of Foreign Intelligence Surveillance Act (FISA) requests it receives and the total number of users that these requests cover. These numbers are not classified information, but Google is nevertheless prohibited from publishing them by the FISA Court.

In Google's filing with the court, the company said that it would include these aggregate numbers in the Google Transparency Report, which is publishes every six months. Google said in its motion that the company does not plan to reveal which FISA authorities asked for the data. The company also said that it does not intend to release any details on what the data requests were for.

This is not the first time that Google has raised this issue with federal authorities. In fact, Google's chief legal officer, David Drummond, wrote to Attorney General Eric Holder and FBI Director Robert Mueller asking for greater transparency in releasing numbers for data requests and pointing out that keeping the numbers secret fueled speculation that Google was giving the government access to its servers.

In his letter, Drummond noted that the FBI has authorized the release of general numbers by Google in March 2013, long before the National Security Agency revelations made headlines. In fact, Google CEO Larry Page went out of his way to say that the claims of the company's complicity in the data gathering were false.

Google is already releasing some consolidated information on the government's data requests and wants to make the numbers more precise. What must be driving Google nuts is that it doesn't appear that anything the company is asking for is a secret—it's just prohibited by a court order. What Google is asking for is in effect not to be forced by a gag order to keep things secret that aren't actually a secret.

In other words, Google is being held to a higher level of secrecy than someone who didn't receive the court order might be. Google believes that the First Amendment to the Constitution gives it the right to disclose the information, and it wants the FISA Court to say so.

Wayne Rash

Wayne Rash

Wayne Rash is a freelance writer and editor with a 35 year history covering technology. He’s a frequent speaker on business, technology issues and enterprise computing. He covers Washington and...