Google Finds Judicial Support in Spy Disclosure Appeal

Google Inc., Facebook Inc. and other technology companies seeking to disclose more about user information they’re being forced to share with U.S. spy agencies received some supporting comments from judges on an appeals panel in San Francisco.

The companies object to being gagged indefinitely about Federal Bureau of Investigation demands for information, through national security letters, when investigating terrorism or espionage cases. U.S. Circuit Judge Randy Smith, who was appointed by President George W. Bush, expressed concern over the lack of an expiration date.

“Why isn’t that something I ought to be worried about?” he asked. “Seems like the government ought to have some obligation.”

The U.S. Justice Department, which lost in a lower court when a judge ruled the statute unconstitutional, argues that the law shields national security investigations from the eyes of terrorists, a consideration that trumps First Amendment concerns. The three-judge appeal panel didn’t indicate which way it might rule.

U.S. Circuit Judge Mary Murguai, who was nominated to the federal bench by President Bill Clinton, asked what would happen if the San Francisco panel found the law unconstitutional, yet adopted new procedures for fixing the gag provision.

Douglas Letter, a Justice Department attorney, said it would be up to Congress to rewrite the statute.

Hamstring Ability

“If you don’t have that tool, the courts would have greatly hamstrung our ability to protect national security,” he said.

Eight months after reaching a compromise with the Obama administration for limited disclosures about government demands for user information in terrorism investigations, the companies now say that’s not enough.

“More than any other industry President Obama has tried to enlist tech companies’ support for his administration,” said Jonathan Turley, a constitutional law professor at the George Washington University Law School. “This is one of the major rifts that have developed with the industry despite all the efforts of the administration.”

A New York federal appeals court established a procedure for the government to justify gagging recipients of information demands, and those rules are being followed, Justice Department lawyers say.

Constitutional Way

“The government has acted in a constitutional way,” Letter said.

Today’s hearing comes a day after Twitter Inc. sued the government for blocking it from going public with details about spy agency orders for user data.

The social media company, which says its free speech rights have been trampled, is seeking to publish precise numbers of government requests and describe to customers its exposure to national surveillance, according to a complaint filed yesterday in federal court in San Francisco.

Both court cases are part of an effort by technology companies to be able to tell users how much information they supply to spy agencies, following revelations by former government contractor Edward Snowden about the extent of U.S. surveillance programs.

The court battles come as Google and Apple Inc., under increasing pressure to prioritize consumer privacy, have marketed the encryption technology built into their latest smartphones as a safeguard against government snooping and hackers. Google and Facebook are also supporting legislation that would rein in the National Security Agency’s bulk collection of Internet data and allow companies to divulge more about the government’s demands for the information.

21,000 Letters

The FBI issued 21,000 national security letters in fiscal 2012. The 2001 Patriot Act significantly expanded the FBI’s authority to issue the letters by allowing special agents in field offices instead of Justice Department officials in Washington to approve a letter.

Recipients of the letters are barred from discussing them.

“More and more service providers are issuing transparency reports,” said Kurt Opsahl, an attorney with Electronic Frontier Foundation, whose clients are seeking an end to the letters. “Many would like to say what national security” demands they’re getting.

The gag provision violates free-speech rights, U.S. District Judge Susan Illston in San Francisco ruled in March 2013 in a lawsuit brought by a phone-service provider that received such a letter. She put her ruling on hold while the government appeals it. Because recipients of the letters are forbidden from discussing them openly, the identity of the phone company isn’t public.

Illston’s Ruling

Three weeks after Illston’s ruling, Google challenged national security letters in a lawsuit filed in federal court in San Francisco. While the case was put under seal, Illston made public a ruling in a lawsuit involving an undisclosed plaintiff filed the same day as Google’s in which she denied a petition to set aside 19 national security letters, saying her earlier ruling against NSLs was on hold and the government had met its burden to enforce the information demands. That ruling is also being appealed.

The U.S. argues the non-disclosure provision of the National Security Letter law serves a compelling government interest.

Thwart Terrorism

“Congress clearly wanted the government to have NSLs as a tool to thwart terrorism and espionage regardless of what, if any, limitations the Constitution places on nondisclosure requirements,” Justice Department lawyers said in a court filing.

Under a deal that Google, Facebook, LinkedIn Corp., Microsoft Corp. and Yahoo! Inc. reached in January with the Justice Department, recipients of national security letters can disclose in bands of 1,000 the number they receive, such as “0 to 999,” every six months.

Google, Facebook, Microsoft and Yahoo aren’t directly involved in the cases being argued today. In filings supporting the undisclosed firms challenging the letters at issue, the technology companies say they should be allowed to disclose more information about the volume, scope and type of national security letters demanding information about their users.

“The government has sought to participate in public debate over its use of the NSL statute,” lawyers for the companies said in a friend-of-the-court filing. “ It should not be permitted to gag those best suited to offer an informed view-point in that debate: the parties that have received NSLs.”

The cases are Under Seal v. Holder, 13-15957 and 13-16731 and Under Seal v. Holder, 13-16732, U.S. Court of Appeals for the Ninth Circuit (San Francisco)

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