Criminal Justice & the Rule of Law Cybersecurity & Tech Intelligence Surveillance & Privacy

Google and Microsoft Want to Tell Us How Often they Get FISA Orders and FAA Directives: Why Not Let Them?

Robert Chesney
Thursday, June 27, 2013, 9:32 AM
A new development in the FISA/FAA world yesterday evening: Google and Microsoft have filed motions with the FISC (posted here on the FISC's public site) asking for permission to disclose to the public how often they have received FISA orders and FAA directives over a set period. Why would they want to reveal such information, and go to such lengths to get permission to do so?  My speculation:  when the Snowden leak linked to these companies first emerged, there were claims to the effect that some companies let NSA sit on th

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A new development in the FISA/FAA world yesterday evening: Google and Microsoft have filed motions with the FISC (posted here on the FISC's public site) asking for permission to disclose to the public how often they have received FISA orders and FAA directives over a set period. Why would they want to reveal such information, and go to such lengths to get permission to do so?  My speculation:  when the Snowden leak linked to these companies first emerged, there were claims to the effect that some companies let NSA sit on their systems, as it were, with constant and discretionary access to traffic and content.  The companies have all pushed back hard on that claim, however, and it seems to me it would help them on that front to be able to show that the government in fact has to come back to them frequently with various FISA orders and FAA directives.  More generally, this will help underline the point that their cooperation is required by statute and court-order alike. At any rate, regardless of the reason for these requests, there is the separate question of whether the government will oppose these motions.  Perhaps it will, but I confess I have a hard time seeing why such aggregate data should be kept secret.  There is no way it could be exploited to determine whom the government is interested in, given the scale of traffic managed by both of these companies.  And I would think it in the government's interest (all along, frankly, but certainly at this point now that so much is in the open and so much angst has emerged as a result), to begin leaning forward much more when it comes to shedding light on activities of this kind. There obviously should be limits to FISA-related disclosures in light of genuine sources-and-methods concerns, but it is very hard to see how aggregate FISA/FAA usage data in this context could fall into that category.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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