Major Internet companies—Google, Microsoft, Yahoo! Inc., Facebook, Inc., and LinkedIn—have requested that they be allowed by the Foreign Intelligence Surveillance Court to publish information on how frequently the United States government makes demands that companies provide user data. However, the government opposes this push by Internet companies to be more transparent.

A spokesperson for Yahoo! reacted, “[The] decision to block our ability to share with our users more granular information related to national security requests ultimately breeds mistrust and suspicion — both of the United States and of companies that must comply with government legal directives.”
Why exactly does the government oppose companies making details about requests public so they do not appear to be totally complicit enablers in surveillance increasingly viewed as intrusive by their users?

A motion filed in the Foreign Intelligence Surveillance Court by the Justice Department explains the opposition. It reveals a lot about how the intelligence community and the administration of President Barack Obama are maneuvering to resist reforms that should take place in the aftermath of former National Security Agency contractor Edward Snowden’s whistleblowing on secret surveillance programs.

Several incredulous claims about what adversaries would be able to do, which would harm the national security of the United States, appear in the motion. They are similar to the allegations that Snowden’s disclosures have done exceptionally grave damage because now terrorists are changing their tactics (allegations which, months later, there is no proof that has occurred or will occur at all).

The government argues that, although the companies would not release information on “individual targets,” they do not understand by disclosing information they would “risk revealing the government’s collection capabilities as they presently exist and will develop in the future.” It would provide information on particular providers that would “permit our adversaries to identify” collection capabilities and “switch providers to avoid surveillance.” It would make it possible for adversaries to “infer when the government has acquired a collection capability on new services.” It would “enable our adversaries to gain significant information about which platforms and services are not subject to surveillance or are subject to only limited surveillance.”

One particular section sticks out because it seems the intelligence community is afraid the next Edward Snowden might be able to use the information published by companies on surveillance requests to avoid detection.

“If our adversaries know which platforms the government does not [emphasis not added] surveil, they can communicate over those platforms when , for example, planning a terrorist attack or the theft of state secrets,” the government suggested. “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.”

Certainly, as intelligence agency leaders like NSA director Keith Alexander and Director for National Intelligence James Clapper continue to maintain that the media is being inaccurate or sensationalizing leaks, it is apparent the intelligence community believes Snowden is waging a disinformation campaign against the NSA. They also believe this is impacting intelligence operations.

On top of that, the Justice Department attorneys also argue the Obama administration cannot support the companies’ request to publish more information because the information they wish to make public on surveillance requests is classified and the companies do not get to decide what information gets to be made public. Only the Executive Branch has the authority to release classified information on surveillance requests.

The companies signed non-disclosure requests so the government argues this prohibits them from releasing data on requests and that, although they argue the gag orders violate their First Amendment rights, that is not the case because the government has a national security interest in secrecy. But these kind of gag orders are increasingly being challenged in court and in more and more cases judges are acknowledging they improperly place constraints on speech.<

Furthermore, Yahoo! described in its motion how it has been “unable to engage fully in the debate about whether the government has properly used its powers because the government has placed a prior restraint on Yahoo!’s speech by forbidding Yahoo! and other providers from disclosing aggregate numbers of demands for surveillance they receive (if any) under FISA.”  The company also maintained that the company’s “inability to respond” to news reports where its name is mentioned has “harmed its reputation and has undermined its business not only in the United States but worldwide.”

The Obama administration wishes to maintain secrecy, which is insensitive to the concerns of Yahoo! and other companies by broadly defining sources and methods.

It claims that the government supports “a policy of appropriate transparency with respect to intelligence activities.” The word “appropriate” is key. Only information that will make the intelligence community look good and not ignite debate on surveillance capabilities will be disclosed. Statistics released on requests must be not be too specific otherwise powers might be subject to scrutiny.

The government maintains the Foreign Intelligence Surveillance Court does not have the jurisdiction to make a decision to allow the companies to publish data on requests. However, companies can move to compel the disclosure of data. Yahoo! has done this before (as indicated in its motion).

Yet, whether the FISA Court has jurisdiction may not matter to the government. The motion makes clear that the court is to show complete and total deference to the government when it comes to whether information should remain classified.

“It is quintessentially an Executive Branch responsibility to assess these risks to national security and to determine what information can be disclosed consistent with both transparency and national security interests,” according to the government’s motion. “In assessing whether the companies’ proposed disclosures will undermine the secrecy of the government’s intelligence collection activities under FISA, the court should defer to the judgment of the Executive Branch.”

FISA Court judges have not liked accusations that they essentially rubber stamp all surveillance requests, even though only 11 of over 34,000 surveillance requests in the court’s history have been denied.

The Obama administration certainly thinks the court should do as it says. Whether the court accepts this attitude will be indicative of whether it can truly be a check on executive power or not.

Photo by svennevenn under Creative Commons license