Companies Have First Amendment Right to Publish FISA Surveillance Statistics, Argues Brief

Yesterday, TechFreedom joined four leading civil liberties groups in an amicus brief before the secret Foreign Intelligence Surveillance Court (FISC) arguing that companies have a First Amendment right to describe their role in the government’s surveillance of the Internet. The brief supports motions filed by Google and Microsoft requesting court orders freeing them to publish aggregate information about the extent of surveillance. The brief acknowledges the need for secrecy surrounding many aspects of the Foreign Intelligence Surveillance Act (FISA) Court’s work, but opposes prior restraints upon companies’ ability to describe their own interactions with government agencies in ways that do not jeopardize investigations.

Most notably, the amicus brief argues:

In seeking to provide the public with information about the number of government requests received and the number of affected subscriber accounts, Google and Microsoft each seeks to engage in speech that addresses governmental affairs in the most profound way that any citizen can. Such speech, relating to the structures and forms of government and the manner in which government is operated or should be operated, is at the very core of the First Amendment.

The following may be attributed to TechFreedom President Berin Szoka:

The raging debate about the proper extent of our government’s surveillance should have happened years ago. It might have — had tech and telecom companies not been barred from disclosing the scale of FISA surveillance, even on a high level. Yahoo!, for instance, challenged the NSA in court over PRISM back in 2007, but couldn’t tell anyone it had stood up for its users or even describe the surveillance it was forced to participate in. Google and Microsoft simply want to provide the same kind of transparency about the NSA’s FISA orders courts have already allowed them to provide about the FBI’s National Security Letters. Gagging such disclosures won’t help national security, but it has already stifled vital public debate and reduced the incentive for the companies we trust with our data to stand up for us against government overreach.

The amicus brief was led by the First Amendment Coalition; written by leading free speech lawyers Floyd Abrams and Dean Ringel; and signed by TechFreedom, the American Civil Liberties Union, the Center for Democracy & Technology, and the Electronic Frontier Foundation. A copy is available here.

Szoka is available for comment at media@techfreedom.org.