Google, Without Admitting It Gets FISA Orders, Files Lawsuit To Challenge FISA Gag Orders

from the well-that-ought-to-be-interesting dept

Tue, Jun 18th 2013 3:02pm — Mike Masnick

Google appears to be stepping it up a notch in trying to fight back against the claims that it is somehow opening up its system to the NSA or other law enforcement folks. As you now know well, one of the leaks from Ed Snowden a few weeks ago was about a system called PRISM, which is associated with how tech companies provide information to the federal government in response to FISA court orders. The initial reports, claiming that the NSA had full direct access to servers and could see what people were doing in real time, appear to have been extremely overblown, as it now seems clear that this was much more narrow. But there's still a big question of how narrow. Google sent an open letter to the DOJ, asking for permission to reveal basic numbers on how many FISA requests they receive and how many people have had information passed along to the government under the program. The government then gave "permission" in a way that actually further obfuscated things, only allowing the release of numbers when combined with all sorts of other government requests.

Now, Google has filed a lawsuit against the government, arguing that gag orders on FISA requests violate the First Amendment. The filing itself is an interesting read, in part for its first footnote:

Nothing in this Motion is intended to confirm or deny that Google has received any order or orders issued by this Court.

Of course, that might lead some to suggest that Google can't actually have standing, but there's an interesting legal argument here. Basically, Google is arguing that the perception that it's opened up its network to the NSA, as suggested in various reports, and which it cannot refute fully without revealing some details of FISA orders it has received, has caused it harm.

Google's reputation and business has been harmed by the false or misleading reports in the media, and Google's users are concerned by the allegations. Google must respond to such claims with more than generalities. Moreover, these are matters of significant weight and importance, and transparency is critical to advancing public debate in a thoughtful and democratic manner.

Given that, Google is seeking a declaratory judgment from the court that it has a First Amendment right to publish the total number of FISA requests it receives and the total number of users associated with those requests, though obviously not anything more. I'm sure the government will come back with all sorts of excuses as to why this is horrible, but it certainly presents an interesting legal challenge to the FISA court's gag orders.

Google Motion for Declaratory Judgment (PDF)Google Motion for Declaratory Judgment (Text)

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Filed Under: first amendment, fisa, fisa court, free speech, gag order, prism
Companies: google

34 Comments

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ChurchHatesTucker (profile), 18 Jun 2013 @ 3:16pm

The government then gave "permission" in a way that actually further obfuscated things, only allowing the release of numbers when combined with all sorts of other government requests.

Is there anything preventing them from releasing just the other requests? I promise not to math.
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PRMan, 18 Jun 2013 @ 3:21pm

Re:
That's beautiful. Love it.
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Anonymous Coward, 18 Jun 2013 @ 3:29pm

Re:
That is brilliant.
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Anonymous Coward, 18 Jun 2013 @ 3:34pm

S.1130
Only tangentially related to Google's complaint in the Foreign Intelligence Surveillance Court�

The text of Senator Merkley's bill S.1130 -- Ending Secret Law Act (Introduced in Senate - IS) is finally up on Thomas.

Further, today, during the House Intelligence hearing, Representative Adam Schiff (California) stated that he would be introducing, in the House, a companion bill to Senator Merkley's S.1130.
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Anonymous Coward, 18 Jun 2013 @ 3:35pm

It's so cute how the sockpuppets come out to refute it, but no one can actually address the merits. Don't miss the link that Mike so desperately wants you not to see: http://rdd.me/e9cd9hqe
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Anonymous Coward, 18 Jun 2013 @ 3:40pm

Re:
Help I'm drowning in tears!
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Miff (profile), 18 Jun 2013 @ 3:43pm

What's that they say? "If you're not doing anything wrong you have nothing to hide?"
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out_of_the_blue, 18 Jun 2013 @ 4:01pm

An excellent piece of defending without admitting:
Even Mike starts by hedging: "Google appears to be"...

Mike's italics: "Google is arguing that the perception that it's opened up its network to the NSA".

So there you go! All just a mis-perception of what Google says are "false or misleading reports in the media".

One of the benefits of weaseling is that it's difficult to expose, because no matter what the outcome is, the weasel can argue techicalities to always end up right.

I expect that as this suit drags through the courts we'll incidentally learn for sure that NSA does have access to Google's number crunchers, but that Google isn't lying now because it's not "direct access" to their "servers". Or some further narrowing of "users". In any event, don't expect Google to just flat out admit it's a spy agency.

Denying forever is totally consistent with Google being a spy agency. As is this court case: it's good publicity now, could always get decided (or be maneuvered so) that they must keep it secret, and even if ever the truth emerges, no worse of damage. So if you game this out, it says nothing.
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Anonymous Coward, 18 Jun 2013 @ 4:08pm

What do certain people not want you to see?

This! http://v.gd/3K4FAn

So scared of the truth! It's totally awesome!
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Yeah right, 18 Jun 2013 @ 4:24pm

Re:
Your first link worked.

You are using the tactics of a person who has lost the argument.
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Anonymous Coward, 18 Jun 2013 @ 4:27pm

Re: Re:
It's worse than that.
He's acting like a child throwing a temper tantrum.
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James Burkhardt (profile), 18 Jun 2013 @ 4:30pm

"Nothing in this Motion is intended to confirm or deny that Google has received any order or orders issued by this Court.
Of course, that might lead some to suggest that Google can't actually have standing, but there's an interesting legal argument here. Basically, Google is arguing that the perception that it's opened up its network to the NSA, as suggested in various reports, and which it cannot refute fully without revealing some details of FISA orders it has received, has caused it harm"

Actually, its posible that by confirming they receive FISA requests (and specifically FISA requests) they would actually violate the gag order and therefore be sanctioned without the merits of the case ever being debated.
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dante866 (profile), 18 Jun 2013 @ 4:35pm

Re: AC and rdd.me
Oh, you're real tough there...posting as a guest on pastebin? and you're calling mike a coward?

get your yellow-bellied ass off the net, you're making our other AC's look bad...
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Zeissmann (profile), 18 Jun 2013 @ 5:16pm

No sense in that footnote
That footnote doesn't make sense. If Google never received any FISA requests, they wouldn't be tied up by any gag orders, and therefore they could just say: "We never received any FISA requests". So the filing itself confirms Google received some FISA requests.
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Anonymous Coward, 18 Jun 2013 @ 5:20pm

Re: An excellent piece of defending without admitting:
Out of the blue fails reading comprehension forever
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Anonymous Coward, 18 Jun 2013 @ 5:28pm

Re: Re: Re:
That's an insult to whiny babies everywhere.
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Anonymous Coward, 18 Jun 2013 @ 5:41pm

Finally an admission of the limits on this. I think it is more important that the writers on this site pipes down and wait for more specific details on the extend of the surveillance instead of semi-blindly criticising everyone opening their mouth about the case.

While the criticism may be warrented it still needs some clarification of extend, broadness and exactness. Untill then, stick to the broad strokes when criticising and be careful about demonising politician-speak. Often you can analyse what the politician say too much and come to the wrong conclusion.
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Anonymous Coward, 18 Jun 2013 @ 6:40pm

Re: Re: Re: Re:
Light bulb:

AJ is the bastard son of ootb and darryl.
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Anonymous Coward, 18 Jun 2013 @ 7:22pm

See the post that mike is so scared of that he's blocking IP addresses, keywords, and links...

http://tr.im/44w44

Why is mike such a hardcore censor? I thought he hated censors??

Hmm..
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Anonymous Coward, 18 Jun 2013 @ 7:25pm

Episode 2 is in the works.

You can bet that Mike will be working extra hard to censor it.

why is he so scared of criticism? why is he working so hard to censor me??

You decide.

stay tuned!!
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Uriel-238 (profile), 18 Jun 2013 @ 7:59pm

Wow. This is bad on so many levels.
Let us say that I provide a service that offers a quantifiable amount of discretion: I promise I will use your metadata for research purposes, but only after your identity has been trimmed from it, and it doesn't get viewed by human beings until it's thoroughly anonymized (humans look at statistics, but not the data itself).

Then the DoJ sends me an NSA order to hand over all my data, which, as part of my business model, I'm obligated to my end-users to keep private. Then they gag me from actually saying that I turned all that data over. Ergo:
~ If I obey the order, I betray my client base.
~ If I refuse the order, I am in contempt of justice.

Yeah, the NSA really fucked over our tech community since we just cannot trust service in US jurisdiction ever again to keep our data private.
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Anonymous Coward, 18 Jun 2013 @ 8:17pm

Re:
Imaginary conspiracies, paranoia, persecution. What's next?
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Anonymous Coward, 18 Jun 2013 @ 11:35pm

Re:
See the post that mike is so scared of that he's blocking IP addresses, keywords, and links...

Umm.... Don't mean to burst your bubble but wouldn't that mean you wouldn't be able to post? On my server, I would have marked your IP as spam long ago.
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Niall (profile), 19 Jun 2013 @ 2:56am

Re: An excellent piece of defending without admitting:
Google! Derp! Google! Bawk!

There, I managed to contribute more to this than your ongoing Google paranoia.

Seriously, if you were picking on other 'big search' or ad-monetised content (FB etc) you might seem reasonable, but you seem incapable of moving off your MS-sponsored talking points.
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Niall (profile), 19 Jun 2013 @ 2:57am

Re: Re: Re: Re: Re:
Does that mean he runs on solar power? Can we ship him to the South Pole for the next three months? :)
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Niall (profile), 19 Jun 2013 @ 3:01am

Re:
What is there to censor? If he were censoring you, why aren't your posts vanishing? Why would we care about your spittle-filled rants anyway? All they are is you making unfounded assertions with no evidence, wrapped in ad-homs and temper tantrums, and served up with lashings of your 'Mikey' obsession/love affair.

Frankly, I could get more intelligent discourse on Free Republic, Spearhead or InfoWars...
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Anonymous Coward, 19 Jun 2013 @ 3:45am

perhaps another tack would be to try to get the whole idea of the FISA court kicked out? from what i understand, it basically makes secret decisions that are unable to be disclosed, so stop that!
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Ninja (profile), 19 Jun 2013 @ 4:30am

Re:
Well, it is said that the number of FISA orders range from 10-20 billion per year*.

* note that the number of FISA orders is counted in a range along with the number of toilet paper units sold throughout the world. Why? Well, it's classified.
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John Fenderson (profile), 19 Jun 2013 @ 9:27am

Re:
I think it is more important that the writers on this site pipes down and wait for more specific details on the extend of the surveillance

With the capturing of phone data, the one specific detail that we do have is more than enough to warrant great outcry: they're compiling a database of data about all of our communications. Further revelations may indicate that the outcry be increased, but they cannot possible indicate that the outcry so far was too much.

The capturing of internet traffic data is less clear-cut, but the details we have right now are certainly enough to warrant expressions of concern.
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John Fenderson (profile), 19 Jun 2013 @ 9:30am

Re: Wow. This is bad on so many levels.
100% this. No US-based service is trustworthy, as a matter of law.
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John Fenderson (profile), 19 Jun 2013 @ 9:31am

Re:
This has been my position from when the FISC was first created. The court is a travesty.
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Uriel-238 (profile), 19 Jun 2013 @ 10:25am

Ten to Twenty BILLION?
Well, it is said that the number of FISA orders range from 10-20 billion per year*.

WTF are they doing? Sending multiple orders to each and every person on the planet?

Why haven't I gotten mine?
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Dave, 19 Jun 2013 @ 10:28am

Re:
That's strange. There seems to be no way of adding comments. Perhaps a little one-sided, I feel. It all looks like someone who is totally desperate because nobody is actually listening to the ravings of a blithering idiot. There also seems to more than just a hint of paranoia creeping in here. Perhaps a visit to a psychiatrist would the order of the day OOTB, before you burn yourself out with all this totally unjustified venom? I would hope that the abuse facility will be well-used.
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Ninja (profile), 19 Jun 2013 @ 12:05pm

Re: Ten to Twenty BILLION?
A lot of crap to be cleaned nowadays =/
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