Google Invokes First Amendment In The NSA PRISM Scandal


Google Invokes First Amendment In The NSA PRISM Scandal 


It will not surprised me that Facebook, Google, Microsoft and Yahoo's Offices are under monitoring surveillance right now. Revelations about the PRISM program are not only revealing crispy details on National Security Agency (NSA) surveillance methods, opening new debates about national security vs. personal privacy, but are also provoking fissures between U.S. Officials and all the technology companies involved in it; mostly Google.

Yesterday, Google filed a "motion for declaratory judgement[1] of Google Inc.'s first amendment right to publish aggregate information about FISA Orders" (click here). As you all know, the First Amendment states that:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press (underlined added); or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

In doing so, the tech Giant is fighting the government’s gag order (= a court order forbidding public reporting or commentary, as by the news media, on a case currently before the court) on releasing how many users are monitored by the NSA. In particular, Google seeks a declaratory judgement that 'Google has the right under the First Amendment to publish, and that no applicable law or regulation prohibits Google from publishing, two aggregate unclassified numbers: (1) the total number of FISA requests it receives, if any; and (2) the total number of users or accounts encompassed within such requests' (see above).

In the motion, Google also insisted on one of its core values 'transparency' (mentioned 6 times in this short document) and, once again, on the stories falsely alleging that Google was providing the U.S. Government with 'direct access' to its systems.

Google has also published a statement on Google+ explaining its move:

"We have long pushed for transparency so users can better understand the extent to which governments request their data—and Google was the first company to release numbers for National Security Letters. However, greater 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. Lumping national security requests together with criminal requests—as some companies have been permitted to do—would be a backward step for our users".

"Facebook (received as many as 10,000 requests from local, state and federal agencies), Microsoft (received between 6,000 and 7,000 similar requests) and Yahoo (received between 12,000 and 13,000 requests for data) in recent days have won federal government permission to include requests from the court as part of the overall number of data requests they receive from federal, state and local officials (...)" said the Washington Post. And Apple received between 4,000 and 5,000 requests from U.S. law enforcement for customer data (here).

However, Google has rejected that approach as too imprecise to help users understand the scope of its cooperation with federal surveillance. Benjamin Lee, Legal Director at Twitter, stated the same via a tweet.

We know they all (vigorously) denied that they had given the U.S government 'direct access' to their servers. Whereas Facebook, Yahoo and Microsoft have revealed the numbers of request received in the last 6 months, Google on the other hand is waiting for the Court authorization to lawfully disclose the information expressed in its request. What we still don't know though, if all the tech companies mentioned in the PRISM document were really involved in this program. At the end of the day, as long as these companies are transparent with data and protecting user privacy, does it still really matter?!






[1] In the U.S., a declaratory judgement is a type of preventive justice. It often comes after a controversy has risen. More precisely, it is "a court decision in a civil case that tells the parties what their rights and responsibilities are, without awarding damages or ordering them to do anything. Courts are usually reluctant to hear declaratory judgment cases, preferring to wait until there has been a measurable loss. But especially in cases involving important constitutional rights (such as the First Amendment in Google's motion), courts will step in to clarify the legal landscape" (http://www.law.cornell.edu/wex/declaratory_judgment). 

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