US spy court says internet firms can't report surveillance requests

The US Department of Justice has issued a formal response to requests by Google, Microsoft, and other internet companies to disclose more information about government requests for user data under the Foreign Intelligence Surveillance Act. And – surprise, surprise – it's firmly against the idea.

"Although the Government has attempted to release as much information as possible about the intelligence collection activities overseen by this Court," the FISA court wrote in a 25-page brief published on Wednesday, "the public debate about surveillance does not give the companies the First Amendment right to disclose information that the Government has determined must remain classified."

Google and Microsoft jointly sued the government for more leeway to inform their users of government data requests in August. The FISA court's brief notes that Facebook, LinkedIn, and Yahoo! have all since made similar petitions.

"We will continue to press for additional transparency, which is critical to understanding the facts and having an informed debate about the right balance between personal privacy and national security." Microsoft told El Reg in a statement.

In March, Google won the right to disclose aggregate information about the number of National Security Letters it had received from federal agencies – specifically, it was allowed to admit that it had received anywhere from none to a thousand of them – but the FISA court argues in its brief that no more specific information should be revealed.

"Such information would be invaluable to our adversaries, who could thereby derive a clear picture of where the Government's surveillance efforts are directed and how its surveillance activities change over time," the brief explains, "including when the Government initiates or expands surveillance efforts involving providers or services that adversaries previously considered 'safe.'"

In other words, if companies were allowed to disclose which internet services were being monitored, and how often, people under investigation would be able to know when to jump from service to service to avoid surveillance.

What's more, the court argues, if Google and Microsoft were allowed to disclose such information, then more and more companies would seek similar permission, giving surveillance subjects a broad picture of government spying activities.

"They can also use that information to engage in deceptive tactics or disinformation campaigns that could undermine intelligence operations and that could even expose Government personnel to the risk of physical harm," the court's brief states.

The court claims that internet companies have argued that FISA secrecy requirements apply only to disclosures of surveillance on individual subjects. "But that implausible reading ignores the forest for the trees," it argues in its brief. "It would permit damaging disclosures that would reveal sources and methods of surveillance potentially nationwide."

Various companies expressed their disappointment with the court's filing on Wednesday. But barring an act of Congress or the President, the chances of the FISA court authorizing further disclosure seem slim.

"As we've said before, the United States should lead the world when it comes to transparency, accountability, and respect of civil liberties and human rights," Yahoo! said in a statement. "We urge the U.S. Government to reconsider this decision and grant our petition for greater transparency around national security requests for user data."

Microsoft added in a statement emailed to The Reg, "We will continue to press for additional transparency, which is critical to understanding the facts and having an informed debate about the right balance between personal privacy and national security." ®