Although it has taken months, telecommunications companies are finally gaining traction with the Obama Administration. While most readers are familiar with their public awareness campaign regarding their role in the NSA surveillance programs, what may come as a surprise is that they have been fighting a different variety of government-imposed silence since before the Snowden leaks. Last week, however, the two came together for what probably amounts to a win for both sides of the debate.
In March of last year, a district court judge sitting in California held that the FBI’s long-standing use of national security letters (“NSL”) was unconstitutional. Specifically, the court took issue with the gag orders that often accompany the NSLs. For years, the FBI has used NSLs to compel electronic communication service providers (“ECSP”) to provide certain user information, if relevant to terrorism or intelligence investigations. Frequently, these NSLs come with nondisclosure provisions that prevent the ECSPs from disclosing not only the content of the requests but also the fact that they received a request at all. In response to a sealed complaint contesting these gag orders, the district court concluded that they were an unconstitutional restraint on the companies’ freedom of speech. Of note, the gag orders could stymie their ability to take part in the public debate over appropriate government activities. Recognizing the weight of the decision, however, the judge stayed enforcement pending the government’s anticipated appeal to the Ninth Circuit, taken weeks later on May 6, 2013.
Despite the stay, the decision emboldened other ECSPs to follow suit. In addition to filing a similar complaint with the same district judge, Google negotiated a private deal with the Department of Justice, allowing it to publish how many NSLs it received, but in bands of 1000. But beyond this, Google could not distinguish its receipt of NSLs in any way, lest it reveal too much information about the FBI’s investigations.
Then came Edward Snowden. It quickly became apparent that, in addition to receiving NSLs from the FBI, ECSPs like Google were receiving broader requests from the NSA under a relatively unknown provision of the Foreign Intelligence Surveillance Act (“FISA”). Here, too, the FISA requests included gag orders. ECSPs suddenly found themselves under the public microscope and felt even more compelled to shed light on how they participated in the government’s increasingly controversial surveillance.
Google again led the charge and filed a petition with the Foreign Intelligence Surveillance Court (“FISC”), which approves NSA requests before they can be sent to ECSPs. Facebook, Microsoft, LinkedIn, and Yahoo filed their own petitions soon after, with Apple and DropBox also filing amicus briefs in support. Together, they sought permission to disclose aggregate data about the number of national security requests they received, whether as FISA requests or NSLs. The ECSPs argued that the government-enforced silence prevented their customers from accurately understanding how the government was using their information, and ultimately hurt their bottom lines. Constitutionally – echoing the sentiments of the California district court – they argued that the gag orders infringed their First Amendment rights. As the public backlash over the Snowden revelations continued to mount, the Obama Administration began discussions with Google and others behind closed doors.
Those discussions came to a mutually agreeable conclusion last week, when the ECSPs voluntarily dismissed their FISC petitions in exchange for the new liberties announced in a joint statement by Director of National Intelligence James Clapper and Attorney General Eric Holder. Acknowledging how important this issue had become to the private sector, the statement read: “T]he public interest in disclosing this information now outweighs the national security concerns that required its classification,” adding that “[p]ermitting disclosure of this aggregate data addresses an important area of concern to communications providers and the public.”
Similar to Google’s previous deal, all ECSPs may now publish general figures on the number of NSLs they receive, provided that they round those figures off by the 1000s. Alternatively, ECSPs could combine their NSL and FISA request figures, in which case they could round off by every 250 requests. But either way, the ECSPs will have to limit their NSL figures to only those requests that are at least six months old. And if NSLs seek information relating to a new technology or platform, the ECSPs will have to wait two years before publishing that data.
Despite the apparent victory for the private sector, some still question whether the changes are really meaningful. While the White House benefits from the perceived transparency, the broad banding requirements will probably cap the benefits for the ECSPs and the public. Unsurprisingly, civil liberties groups like the ACLU have called for permission to publish more exact figures. The greater transparency also does not alter the ECSPs’ complementary role in government surveillance – a reality about which many are uncomfortable. Perhaps this is why the ECSPs are not stopping there, noting in their public response to the settlement that they will continue to petition Congress for additional reforms.