In a filing published by The Washington Post, Google argues that the original Post and Guardian stories on the now-infamous PRISM surveillance program were “misleading,” particularly with respect to the claim that the NSA had “direct” access to Google servers, but the full scope of the reporters’ errors could not be exposed without running afoul of the Justice Department and FBI.
Specifically, Google wants FISC approval to publish “(1) the total number of [Foreign Intelligence Surveillance Act (FISA) warrant] requests it receives, if any; and (2) the total number of users or accounts encompassed within such requests.” Essentially, Google wants to tell its users exactly how many times the NSA has looked at Google data and how many users’ data the agency gobbled up.
These numbers are not classified, and Google’s motion does not clarify the legal reasoning behind Justice and the FBI’s position that publishing them would be illegal. Regardless, it’s within FISC’s power to declare the information to be protected by the First Amendment, which would allow Google to publish them alongside other unclassified information about national security requests it gets.
The failure to disclose detailed information about the NSA’s surveillance programs has frustrated public debate on the topic. While law enforcement and national security officials claim that the programs were critical to preventing terrorist attacks, it’s very hard to assess that sort of claim (which are occasionally challenged by public documents) absent currently classified evidence of the precise role NSA surveillance played. Moreover, absent precise information of the breadth of the NSA program of the sort Google is petitioning to disclose, it’s basically impossible to identify whether the program is being abused. This intense secrecy can lead internet users to fear perpetual surveillance, potentially weakening the internet’s role as a place for free expression and experimentation.
FISC proceedings, which also approve the FISA warrants that require Google and other tech companies to comply with PRISM, are secret, so following the progress of Google’s motion will be difficult. A 2008 FISC ruling held that Yahoo’s Fourth Amendment objections to cooperating with the PRISM program were “overblown.“