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Government Surveillance

After NSA Revelations, Google Takes Lead on Pushing for Transparency

Once again, Google has taken the lead in pressing for more transparency around government demands for Internet users’ private data. Google just this afternoon released a letter from its Chief Legal Officer David Drummond calling on Attorney General Eric Holder to permit Google to report on the aggregate number of orders it receives under the Foreign Intelligence Surveillance Act (FISA) and the number of customer accounts impacted by those orders.

This is a tremendously important development and will put additional pressure on the Obama Administration to disclose more information about the surveillance it has been conducting under the FISA Amendments Act and under Section 215 of the Patriot Act. We hope that other tech giants echo this demand that the Administration and Congress moves quickly to lift the veil of secrecy that has made it impossible for the American public to have a meaningful debate about the extent of government surveillance.

Google, which has been a pioneer in transparency reporting, already reports the number of National Security Letters (NSLs) that it receives on a very rough basis and the number of accounts specified in those letters (e.g., 0-1000, or 1001-2000). The FBI uses NSLs to compel communications service providers to disclose non-content in counter-terrorism and counter intelligence investigations.  NSLs come with permanent gag orders—orders that are currently being challenged under the First Amendment—but Google was able to negotiate permission from the Justice Department to do some rudimentary NSL reporting.

The company is now similarly asking the Department of Justice to authorize it to disclose aggregate numbers of national security requests, including disclosures made under the FISA—both the numbers of government demands received and their scope. Such FISA orders would include PATRIOT Section 215 orders issued by the FISA court, like those being served on telecoms to compel them to turn over the phone records necessary to build an NSA database of telephone calls made within and to or from the United States.  Also included—to the extent Google receives them—would be FISA orders for the prospective interception of communications content and FISA orders authorizing “pen register” or “trap and trace” surveillance for the prospective acquisition of communications metadata.

Such disclosure would make an enormous contribution to the public’s understanding of the nature and scope of intelligence surveillance, and Google should score some big points for making this request of DOJ.  Of course, we urge it, and other Internet companies, to go further:  Right now, Google and other companies that receive demands for customer data under intelligence authorities are gagged indefinitely from disclosing that they have received such demands.  Google and the rest of the telecom and Internet industry should ask Congress to pass legislation that not only clearly allows them to do this kind of reporting without having to beg permission of the DOJ, but also requiring that the gags that stop them from speaking about particular requests be lifted after a date certain unless the government can prove to a court a continuing need for secrecy.