Google Thinks It's Its First Amendment Right To Publish Info On FISA Requests

Google Is Using The First Amendment To Push Back Against The NSA

Google is taking its fight for transparency and image rehabilitation one step further in the wake of the revelation that the government is collecting people's digital data in a sweeping program called PRISM.

The Washington Post reported late Tuesday that Google is preparing to challenge a clandestine court's long-standing gag order over publishing the number of data requests the National Security Agency makes to collect emails, photos and other files people send over the Internet.

Though Google has published transparency reports since 2009, the company has long thought the current level of transparency doesn't go far enough. Earlier this year, Google won the right to tell the public the number of times it was sent "national security letters," or the federal requests to look at Americans' "metadata" (like who emailed whom) but not the files themselves (what the email said).

Under pressure, the federal government last week gave major Internet companies permission to publish the numbers of requests authorized by the Foreign Intelligence Surveillance Act to gather online correspondence, but only if that data was coupled with other requests made by local authorities. At the time, Google sent a letter to the FBI and Attorney General Eric Holder asking for permission to disclose more.

"[G]reater transparency is needed, so today we have petitioned the Foreign Intelligence Surveillance Court to allow us to publish aggregate numbers of national security requests, including FISA disclosures, separately," Google wrote in a statement on Google+. "Lumping national security requests together with criminal requests—as some companies have been permitted to do—would be a backward step for our users."

As Google's thinking goes, combining normal data requests made by local police departments for criminal cases with those made by the federal government for spying obscures from the public how frequently the NSA surveils Internet activity. Yahoo, for example, can say that law enforcers asked it between 12,000 and 13,000 times for users' information -- but not how many of those requests came as part of PRISM or any other spying programs.

Google, like the eight other companies implicated in the PRISM leak, have issued stern, carefully worded denials of involvement in the program. AOL, parent company of The Huffington Post, denied any knowledge as well. This week, companies like Facebook, Apple and Yahoo were able to reveal the number of data requests they've received from the NSA in the aggregated form.

Google would not be the first company invoking the Constitution in an effort to fight back against government requests for data. In 2008, Yahoo reportedly challenged this secret court on the basis that data requests violated their users' constitutional rights against unlawful search and seizures. The secret court forced Yahoo into participation in the PRISM program.

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