Internet Companies Argue A 1st Amendment Right To Correct False Reports On NSA Spying, Despite Gag Orders

from the fighting-the-fight dept

Mon, Sep 9th 2013 3:05pm — Mike Masnick

A week and a half ago, we noted that the intelligence community and the big internet companies (Google, Microsoft, Yahoo and Facebook) had failed to come to an agreement that allowed the tech companies to publish the details on how many requests FISA court orders they get and how many of their users this impacts. Given that, the various companies made it clear that this fight would continue in court. Today, they filed very similar briefs, which you can see below, claiming a few key things:

The various public reports from The Guardian, The Washington Post (and others, including Gawker) are flat out wrong concerning the nature of these companies' involvement with the NSA.
Because of the gag order on FISC orders under Section 702 of the FISA Amendments Act, the tech companies are barred from correcting the record, which is tremendously harmful to them and their business prospects.
They have a First Amendment right to give out information on how many such requests they receive, and how many users those requests have impacted.
Doing so would have no harmful impact on national security.

That seems to be the basic argument, and it's a strong one. The Google and Yahoo filings, in particular, don't hold back in terms of how ridiculous this whole situation is, in which they're accused of doing something and are barred due to a nebulous gag order from proving that they didn't actually do it. Some of the requests also note that the court's hearings over these challenges should also be held in public. As Google's filing notes:

Google further requests that the Court hold oral argument on this amended motion and that the argument be open to the public.. A public argument would be consistent with this Court's rules, which state that "a hearing in a non-adversarial matter must be ex-parte and conducted within the Court's secure facility," suggesting, by negative implication, that a hearing in an adversarial matter shall be open..... It is also required by the First Amendment, which generally protects a right of public access to judicial proceedings.

I imagine we'll be hearing about this case for quite some time....

Google Fisc Motion sep9 2013 (PDF)Google Fisc Motion sep9 2013 (Text)

Misc 13 05 Motion 130909 (PDF)Misc 13 05 Motion 130909 (Text)

Misc 13 06 Motion 130909 (PDF)Misc 13 06 Motion 130909 (Text)

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Filed Under: 1st amendment, 702, first amendment, fisa amendments act, gag orders, nsa, nsa surveillance
Companies: facebook, google, microsoft, yahoo

42 Comments

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Anonymous Coward, 9 Sep 2013 @ 3:16pm

As soon as corporate profits are on the line, suddenly the top Brass at these companies start caring about the Constitution. Shocker!
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Zakida Paul (profile), 9 Sep 2013 @ 3:24pm

Too little too late. Trust in the tech companies and the government is gone. Once business contracts expire, I can see a lot of US based companies losing business over this unless they get radical, which I do not see happening.
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- Mike Masnick (profile), 9 Sep 2013 @ 3:28pm
  
  Re:
  Too little too late. Trust in the tech companies and the government is gone.
  
  Not that I disagree, but I am a bit curious about what more they could have done any earlier than this?
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  - Anonymous Coward, 9 Sep 2013 @ 3:36pm
    
    Re: Re:
    Ignored the gag and then had their day in court? That's a good start.
    [ link to this | view in chronology ]
    - Zakida Paul (profile), 9 Sep 2013 @ 3:43pm
      
      Re: Re: Re:
      I agree with this. Getting them in court is one battle that needs to happen in order to change things.
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    - OldMugwump (profile), 9 Sep 2013 @ 3:44pm
      
      Re: Re: Re: Ignored the gag and then had their day in court
      I suspect that is exactly what Google and Yahoo! are planning with this filing.
      
      The FISA court will probably say "we can't decide if the 1st Amendment protects you until somebody ignores the gag and it comes to trial".
      
      So, then, having exhausted every available avenue short of that, Google and Yahoo will ignore the gag and publish the numbers.
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      - Ninja (profile), 10 Sep 2013 @ 4:51am
        
        Re: Re: Re: Re: Ignored the gag and then had their day in court
        That would be plain awesome. The company that does it will earn a shitload of trust.
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      - Pragmatic, 10 Sep 2013 @ 6:06am
        
        Re: Re: Re: Re: Ignored the gag and then had their day in court
        Let's hope they do that, and soon.
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    - Anonymous Coward, 9 Sep 2013 @ 8:09pm
      
      Re: Re: Re:
      I have to agree, they gave the government their necks on the hope that they wouldn't be found out. "It's okay, I didn't know I would be caught!" isn't a valid defense for them even if the government has the proverbial gun to their back. Not even in US law is it a valid defense.
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    - Mike Masnick (profile), 10 Sep 2013 @ 2:28am
      
      Re: Re: Re:
      Ignored the gag and then had their day in court? That's a good start.
      
      Uh, being suicidal doesn't help. People have to be real here. If a company flat out ignored the gag order they'd lose in court big time.
      
      And Yahoo did fight back and lost.
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      - Ninja (profile), 10 Sep 2013 @ 5:04am
        
        Re: Re: Re: Re:
        Really? How much of an impact would any actions against Google have? How much of a public backlash would it produce? And what if all the major tech companies decided to act together? Would it be suicidal?
        
        I think it's past time they went on the offensive by ignoring some gag orders where there are no reasonable motivations (ie: info on known activists).
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        Mike Masnick (profile), 10 Sep 2013 @ 10:53am
        
        Re: Re: Re: Re: Re:
        Really? How much of an impact would any actions against Google have? How much of a public backlash would it produce? And what if all the major tech companies decided to act together? Would it be suicidal?
        
        I think it's past time they went on the offensive by ignoring some gag orders where there are no reasonable motivations (ie: info on known activists).
        
        Have you heard the story of Joe Nacchio and Qwest and what happened when they tried to push back?
        
        http://www.washingtonpost.com/wp-dyn/content/article/2007/10/12/AR2007101202485.html
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      - Pragmatic, 10 Sep 2013 @ 6:09am
        
        Re: Re: Re: Re:
        But what would the repercussions be? We've got to stop pussyfooting around and be prepared to take some risks. Taking on the NSA over something trivial that shouldn't be classified in the first place, particularly if you're a major donor or employer, might just work. And it may well kick off an avalanche of similar cases that bring the whole house of cards crashing down.
        
        We can but hope.
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        Mike Masnick (profile), 10 Sep 2013 @ 10:54am
        
        Re: Re: Re: Re: Re:
        But what would the repercussions be? We've got to stop pussyfooting around and be prepared to take some risks. Taking on the NSA over something trivial that shouldn't be classified in the first place, particularly if you're a major donor or employer, might just work. And it may well kick off an avalanche of similar cases that bring the whole house of cards crashing down.
        
        Again, as posted above, look at what happened to Joe Nacchio and Qwest for trying to fight back.
        
        There are battles to pick, but willy nilly ignoring the feds? That's suicidal.
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  - Anonymous Coward, 9 Sep 2013 @ 7:53pm
    
    Re: Re:
    Not that this would have helped much but standing up to the government at every turn would have been a good start. Requiring a warrant for each and every bit of information requested, not housing taps in their switching facilities. suing in the secret court and open courts for the right to speak out about these things. Hell a Librarian stood up and that story got out but corporate America looks not to have challenged this. If the did truly fail to challenge this they deserve whatever happens to their stock price.
    
    The NSA may have done irreputable harm to the reputations of American corporations like Apple, Microsoft, Google, Verizon, Intel...
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  - Pixelation, 9 Sep 2013 @ 10:05pm
    
    Re: Re:
    "Not that I disagree, but I am a bit curious about what more they could have done any earlier than this?"
    
    When you wake up in bed with the Devil you have two choices, stay in bed or get out. They stayed until someone opened up the window. Suddenly they jump out screaming AFTER everyone sees.
    No fucking sympathy. Sorry.
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    - Mike Masnick (profile), 10 Sep 2013 @ 2:33am
      
      Re: Re: Re:
      When you wake up in bed with the Devil you have two choices, stay in bed or get out. They stayed until someone opened up the window. Suddenly they jump out screaming AFTER everyone sees.
      No fucking sympathy. Sorry.
      
      Look simplifying what's happening to the point you're discussing just seems naive. There *are* legitimate government requests for information. You pretend that there can be no such requests.
      
      And, no they didn't jump out screaming after everyone sees. It's known that Yahoo fought Section 215 orders. It's known that Twitter fought 2703(d) orders. It's known that Google fought NSLs. There's tremendous evidence that those companies clearly fought back when they believed the orders were out of line.
      
      Claiming that they should have fought every single order is just stupid. It's not even remotely realistic. If they had they would have spent a shit ton of money in court and lost badly every single time. What sort of strategy is that?
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out_of_the_blue, 9 Sep 2013 @ 3:54pm

Yeah, to the skeptical, this is pro-corporatist crap.
First and foremost: corporations are NOT Constitutional "persons" and so CANNOT have First Amendment rights.

It's clearly self-serving publicity and we've NO guarantee they'll do it, because we can't audit them for compliance.

But Mike passes by this shocking assertion without even faint demur.

Corporations are manifestly NOT persons: they're an invention of lawyers for the purpose of allowing specific "natural persons" to gain money in public markets yet escape personal liability under common law. It's sheer fact that these legal fictions have no physical body so no matter what a corporation does, even if outright murder, it can't suffer any punishment other than money fine. "Limited Liability Corporation" states exactly that.

The "natural persons" who wish to form a corporation must FIRST ask permission from the public and so the resulting fictional entity has only granted privileges. They must promise to serve the public interest, and so those privileges exist only during good behavior.

Only the pernicious power of money that over decades paid for statutes causes lawyers to regard corporations similarly to persons. But lawyers will argue anything for a fee; they're as close as "natural persons" can get to being soulless heartless profit machines just like corporations.

Now, if that doesn't convince you and still want to argue, YOU must make a case that corporations do have rights. You're the one proposing a positive: I'm not required to further prove so obvious a negative. -- To save time, any and all court cases that you wish to cite, I'll wave aside on these grounds: courts are often utterly wrong, for instance once held outright slavery to be lawful, besides that they are public servants holding Offices whose SOLE authority stems from that We The People authorize them to act within prescribed bounds. Also, corporations have practically unlimited money with which to influence not only judges but the medieval guild that controls all lawyers. But when such government becomes destructive of OUR ends, we can dissolve those fictions too. So on idealistic and practical grounds I require you to set aside court decisions and argue from first principles and common law. -- AND YOU CAN'T! There's NO way that legal fictions have rights.
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- Anonymous Coward, 9 Sep 2013 @ 3:55pm
  
  Re: Yeah, to the skeptical, this is pro-corporatist crap.
  You're a legal fiction.
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- PopeRatzo (profile), 9 Sep 2013 @ 4:02pm
  
  Re: Yeah, to the skeptical, this is pro-corporatist crap.
  The corporatist Supreme Court says they have rights, so they have rights.
  
  I agree with you about the legal fiction, but it's a legal fiction that we have to treat as fact because SCOTUS treats it as fact.
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  - Anonymous Coward, 9 Sep 2013 @ 4:12pm
    
    Re: Re: Yeah, to the skeptical, this is pro-corporatist crap.
    If you think corporations having rights is a modern occurrence you should probably do some studying.
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    - PopeRatzo (profile), 10 Sep 2013 @ 4:17am
      
      Re: Re: Re: Yeah, to the skeptical, this is pro-corporatist crap.
      Of course you're right. But as long as that modern occurrence is held by the Supreme Court, it's the law.
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- Me, 9 Sep 2013 @ 4:05pm
  
  Re: Yeah, to the skeptical, this is pro-corporatist crap.
  "Corporations are manifestly NOT persons: they're an invention of lawyers for the purpose of allowing specific "natural persons" to gain money in public markets yet escape personal liability under common law. It's sheer fact that these legal fictions have no physical body so no matter what a corporation does, even if outright murder, it can't suffer any punishment other than money fine. "Limited Liability Corporation" states exactly that."
  ___________________________
  
  You don't know what the hell you're talking about. The corporation doesn't get limited liability, the owners *behind* it do. The corporation *can* suffer punishments other than a monetary fine, including but not limited to injunctions, dissolution, etc. And it wasn't an invention of "lawyers". It was an invention of ordinary businessmen (even the first "corporate law" was passed by a board of trade, not lawyers). You obviously learned just enough off that side of cereal to pepper your insanity with bits of jargon, but don't understand the words at all.
  [ link to this | view in chronology ]
  - bigpicture, 9 Sep 2013 @ 7:17pm
    
    Re: Re: Yeah, to the skeptical, this is pro-corporatist crap.
    Also you forgot to mention that a CEO of a corporation can go to jail if found criminally negligent. That would be by breaking the law, and not by economically running the company into the ground.
    Apparently you are not a criminal if you steal the shareholders money within the rules of the casino game.
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- Ray, 9 Sep 2013 @ 4:08pm
  
  Re: Yeah, to the skeptical, this is pro-corporatist crap.
  Most of the time I disagree with the things you say, for various reasons that I'm not going to get into, but in this case I fully agree with you. The companies are only really doing this because it affects their business.
  
  No matter how benevolent a business might seem, they are there to make money first and foremost, we must always think that their decisions benefit them or protect them somehow.
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  - Anonymous Coward, 10 Sep 2013 @ 4:24am
    
    Re: Re: Yeah, to the skeptical, this is pro-corporatist crap.
    OOTB becomes more human, more likable, when he has convictions of his own. Then he's on the line like anyone else.
    
    Plus, when he reveals his actual convictions, half the viewers agree because after all, it's a familiar viewpoint with a lot to be said for it.
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- Gwiz (profile), 9 Sep 2013 @ 5:01pm
  
  Re: Yeah, to the skeptical, this is pro-corporatist crap.
  So on idealistic and practical grounds I require you to set aside court decisions and argue from first principles and common law.
  
  Are you really arguing that we should just ignore the ruling of the highest court in our land because was made by people with higher incomes than you?
  
  Now I agree with you that Citizens United v. Federal Election Commission was unfortunate, but I think I'll wait until that gets overturned at some point in the future, instead of promoting anarchy, thank you very much.
  
  Kind of a weird coming from someone like you, Blue, who argues the moralistic side of copyright, since copyright requires government enforced laws to exist.
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  - Anonymous Coward, 9 Sep 2013 @ 5:27pm
    
    Re: Re: Yeah, to the skeptical, this is pro-corporatist crap.
    out_of_the_blue just hates it when due process is enforced.
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- Xploding_Cobra (profile), 11 Sep 2013 @ 8:18pm
  
  Re: Yeah, to the skeptical, this is pro-corporatist crap.
  Hurry up and try to grope him before he gets away! We know you have that ginormous crush on Masnick!
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Skeptical, 9 Sep 2013 @ 4:10pm

In their defense
Companies should of course be free to defend themselves against false accusations, but given the information revealed so far I can only imagine such defenses would involve either half-truths (in the style of NSA's "under this program") or ignorance (such as where the company isn't aware of what employees with ties to the NSA are doing).
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Anonymous Coward, 9 Sep 2013 @ 4:25pm

doesn't Citizens United v. Federal Election Commission set the precedent that cooperation's have First Amendment rights?
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- Anonymous Coward, 9 Sep 2013 @ 4:28pm
  
  Re:
  ugg, *corporations
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Matthew Cline (profile), 9 Sep 2013 @ 5:02pm

The various public reports from The Guardian, The Washington Post (and others, including Gawker) are flat out wrong concerning the nature of these companies' involvement with the NSA.
I wonder if merely saying that little is a violation of the gag order? I mean, if they're accused of A, and say "we didn't do A", are accused of B, and say "we didn't do B", and so on, up until they're accused of Z, and say "no comment", then you know that Z is exactly what they're doing.
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Anonymous Coward, 9 Sep 2013 @ 6:27pm

Interesting motions. And they're arguing prior restraint--Mike's favorite! Google's lawyers seem confused about what a prior restraint is. They argue that it's a prior restraint, and then jump into a substantive challenge of the restriction. Prior restraints only look at process, not substance. Which is it, Google?

The part Mike quotes makes little sense:

A public argument would be consistent with this Court's rules, which state that "a hearing in a non-adversarial matter must be ex-parte and conducted within the Court's secure facility," suggesting, by negative implication, that a hearing in an adversarial matter shall be open.

Just because a nonadversarial matter must be ex parte, that tells us absolutely nothing about whether an adversarial matter must be open. There is no logical "negative implication" there.
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Anonymous Coward, 9 Sep 2013 @ 6:28pm

doesn't Citizens United v. Federal Election Commission set the precedent that cooperation's have First Amendment rights?

Sure, Google has First Amendment rights. I don't think that's the issue though. The issue is the scope of those rights.
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- Anonymous Coward, 10 Sep 2013 @ 2:03am
  
  Re:
  The NSLs explicitly stifle those rights, seeing as how it seems that saying that there is an NSL in place. NSLs come from the Government. Thus, this is prior restraint by the government.
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  - Anonymous Coward, 10 Sep 2013 @ 9:12am
    
    Re: Re:
    The NSLs explicitly stifle those rights, seeing as how it seems that saying that there is an NSL in place. NSLs come from the Government. Thus, this is prior restraint by the government.
    
    Google is arguing that their speech can't be restricted at all, not that there hasn't been enough procedural protection. Their claim is about substance, not process.
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tracker1 (profile), 9 Sep 2013 @ 6:36pm

Just put up a notice on the home pages...
Like the blackout... just put a notice up saying, "The government is using our data to spy on you." With a details page stating that they can't tell you how much, because they aren't allowed, then link to articles regarding the Snowden links.
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trinsic, 9 Sep 2013 @ 7:55pm

Its a big smoke screen to get everyone's attention off of the fact that there is back doors into all these companies and releasing numbers does nothing to expose that.
The NSA is playing along. Eventually this info will be allowed to be released to keep the attention of the really important stuff until such time as they move onto something else.
We are currently involved take over of this country and are now part of a covert police state that is getting worse.
Everyone is being led around by true but less than essential information to keep people in the dark as to how far we are along with the plans to move over to a world currency dominated by people in power. The sooner you realize this the better for everyone.

Google storm clouds gathering online.
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Anonymous Coward, 10 Sep 2013 @ 4:17am

There's something I don't get. If the false reports are false, why are they allowed?
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Ed the Engineer, 10 Sep 2013 @ 7:38am

Profit vs.Doing what is right.
I don't think this is an either or thing, but rather a little bit of both. As Mike points out, these corporations have tried to fight back at times. It has always struck me that these gag orders are a huge constitutional problem. How can I be forced to perform an action, and forbidden to discuss it, even to determine if the order is legal? This is a great way for the government to bypass the constitution entirely. Look at the telco immunity. Nice trick that.

That being said, I am very grateful that it is not in the corporations best financial interest to co-operate with the government in these cases. If it was, we might not even hear much about this issue.
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Prask, 10 Sep 2013 @ 7:48am

Numbers reporting
Companies have to report FISA requests as part of their aggregate numbers. What is to stop them from reporting the aggregate numbers and then reporting the individual, non-classified number? Then just leave the subtraction to third parties...?
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