Google Challenges Surveillance Gag order, citing First Amendment

By Jennifer Valentino-DeVries

Google is citing the First Amendment before a secret surveillance court, seeking permission to say more about its own involvement in the U.S. government’s surveillance efforts.

On Tuesday, Google challenged a gag order that has prevented it from disclosing the number of surveillance requests it receives under the Foreign Intelligence Surveillance Act, arguing in a court document that free speech protections give it the right to talk.

“We have long pushed for transparency so users can better understand the extent to which governments request their data,” a company spokesman said in a statement. “However, greater transparency is needed.”

The public filing—a remarkably strong action for a company of Google’s stature—comes in the wake of reports about a system dubbed Prism, in which the National Security Agency receives data from Internet companies. Early reports, based on NSA documents leaked by former intelligence worker Edward Snowden, suggested orders resulted in the indiscriminate and automated vacuuming of vast amounts of customer information.

Google and other companies, including Apple and Facebook, pushed back on the reports and asked to be able to disclose the number of data requests they receive, as well as how many of their customers have been affected. The companies were allowed to release numbers about government data requests in aggregate this week, grouping national security requests as well as criminal requests together.

Google has in the past already revealed many of these numbers in a granular way–including for requests known as National Security Letters–but had not included the secret FISA court orders. The company says disclosing its data in aggregate like the other firms “would be a step backward for our users.”

The company had been in contentious discussions with the Justice Department for about a week, according to a person familiar with the matter. The decision to file a challenge with the secretive Foreign Intelligence Surveillance Court was made earlier today, that person said, after the Federal Bureau of Investigation was “immovable” on the issue. It was “after a sincere hope that the FBI would agree that it was in the best interests of everyone to be transparent,” that person said.

In the filing, Google says that, because of strict government gag orders, it has been unable to clear its reputation after disclosures about a program dubbed Prism.

“Google’s reputation and business has been harmed by the false or misleading reports in the media,” the filing says.

The company also says “these are matters of significant weight and importance, and transparency is critical to advancing public debate in a thoughtful and democratic manner.”

The Justice Department did not immediately respond to a request for comment.