Can a fight from Google and Microsoft force transparency from the NSA?

The revelations during the past year over the National Security Agency (“NSA”) and its surveillance of major internet service providers have placed into question the integrity of companies we have come to trust with our private information, including Microsoft, Google, Yahoo, Apple, Facebook, and others. In order to combat the problems associated with the skepticism and lack of transparency over surveillance orders and data requests to major internet companies, Google filed a lawsuit in June of 2013 asking the Federal Courts to amend or strike down the non-disclosure provisions relating to data collected from users pursuant to the Foreign Intelligence Surveillance Act (“FISA”). 18 U.S.C. § 2709(c). The lawsuit initiated by Google this year is separate from the earlier 2013 District Court decision declaring the gag orders resulting from FBI issued national security letters under the USA PATRIOT ACT unconstitutional.

Originally filed in June of 2013 at the Foreign Intelligence Surveillance Court (“FISC”), Google sought a declaratory judgment requesting transparency to the public with FISA orders it receives to turn over information from users.  Shortly after the Google filing, Microsoft, LinkedIn, Facebook, and Yahoo also filed separate motions requesting a limited right to publish information about FISA requests.

Grounds to disclose the requests were that the companies had a right under the First Amendment of the U.S. Constitution to publish limited information related to the requests and that the non-disclosure provisions of the FISA orders also make it impossible to respond to harmful allegations by third-parties that mischaracterize an organization’s cooperation with the government. Specifically, Google intended to disclose to the public the aggregate number of FISA requests it receives and the total number of users or accounts encompassed within such requests.

After filing the lawsuit, the companies gave the U.S. government substantial time to respond in the hope that the extra time would result in an eventual compromise without further litigation. However, as the dates lapsed, the companies moved forward with their plan to litigate the matter. By September 30, 2013, the government responded to the claims made by the tech companies by arguing that the restraints were necessary for national security purposes.  In October, the government shut down delayed the matter further and the case was stayed pending resolution of the government shut down.

Until the decision is handed down, we can only speculate as to possible outcomes. Google’s motion relied on a handful of related cases against restraints on speech, specifically: Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976); Connick v. Myers, 461 U.S. 138 (1983); Press-Enterprise Co v. Superior Court, 478 U.S. 1 (1986), and most recently, Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008).

Nebraska Press Ass’n rejected prior restraints on free speech during criminal proceedings, while Connick helped establish protections on speech regarding matters of public concern. Press-Enterprise Co. discussed the importance of the First Amendment right of access to preliminary hearings in criminal proceedings and the importance of openness in due process. Mukasey has been used to demonstrate that the government cannot impose a restraint on speech such as a gag order without some judicial review. Unfortunately, because Mukasey is not a Supreme Court case, the case law cannot be said to be binding outside the Second Circuit.

In support of its brief responding to the movants, the Government cited a total of 31 cases. However, after reviewing the case law overlapping both briefs, both Mukasey and Nebraska appear to support the movants’ position more than the government’s response. Although Mukasey finds that non-disclosure requirements are not typical prior restraints and are more limiting than most content-based restrictions, the movants are not seeking to lift all FISA provisions preventing disclosure. Rather, the movants are seeking approval of a more reasonable and transparent method to communicate FISA related information to the public while still maintaining the national security interests that concern the government. Nebraska demonstrates that the Court is committed to protecting free speech and that securing prior restraints on speech have a high burden to be met in criminal matters that have to be balanced against the First Amendment.

Given the extent of the present public disapproval with the NSA along with the case law cited by the moving parties, it would be surprising if the FISC rejected the movants’ motions for a declaratory judgment. However, even if the FISC denied the movants’ motions, Congress would eventually step in and provide a popular legislative solution to the concerns raised by the tech companies and the public. So, while it appears that FISA allows for restraints on speech, those restraints are at or approaching the permissible limit because of the recent abuses by the NSA and other law enforcement agencies that have undermined the public trust and confidence in the process.