Google Invokes First Amendment In The NSA PRISM Scandal
Google Invokes First Amendment In The NSA PRISM Scandal
Yesterday,
Google filed a "motion for declaratory judgement[1] of Google Inc.'s first
amendment right to publish aggregate information about FISA Orders"
(click here).
As you all know, the First Amendment states that:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom
of speech, or of the press (underlined added); or the right of the
people peaceably to assemble, and to petition the government for a redress of
grievances.
In
doing so, the tech Giant is fighting the government’s gag order (= a court
order forbidding public reporting or commentary, as by the news media, on a
case currently before the court) on releasing how many users are monitored by
the NSA. In particular, Google seeks a declaratory judgement that 'Google has
the right under the First Amendment to publish, and that no applicable law or regulation
prohibits Google from publishing, two aggregate unclassified numbers: (1) the
total number of FISA requests it receives, if any; and (2) the total number of
users or accounts encompassed within such requests' (see above).
In
the motion, Google also insisted on one of its core values 'transparency'
(mentioned 6 times in this short document) and, once again, on the stories
falsely alleging that Google was providing the U.S. Government with 'direct
access' to its systems.
Google
has also published a statement on Google+ explaining its move:
"We have long pushed for transparency so users can better
understand the extent to which governments request their data—and Google was
the first company to release numbers for National Security Letters. However,
greater transparency is needed, so today we have petitioned the Foreign Intelligence Surveillance Court
to allow us to publish aggregate numbers of national security requests,
including FISA disclosures, separately. Lumping national security requests
together with criminal requests—as some companies have been permitted to
do—would be a backward step for our users".
"Facebook
(received as many as 10,000 requests from local, state and federal agencies), Microsoft
(received between 6,000 and 7,000 similar requests) and Yahoo (received
between 12,000 and 13,000 requests for data) in recent days have won federal
government permission to include requests from the court as part of the overall
number of data requests they receive from federal, state and local officials
(...)" said the Washington Post.
And Apple received between 4,000 and 5,000 requests from U.S. law
enforcement for customer data (here).
However,
Google has rejected that approach as too imprecise to help users understand the
scope of its cooperation with federal surveillance. Benjamin Lee, Legal
Director at Twitter, stated the same via a tweet.
We know they all (vigorously) denied
that they had given the U.S government 'direct access' to their servers. Whereas
Facebook, Yahoo and Microsoft have revealed the numbers of request received in
the last 6 months, Google on the other hand is waiting for the Court
authorization to lawfully disclose the information expressed in its request. What
we still don't know though, if all the tech companies mentioned in the PRISM document
were really involved in this program. At the end of the day, as long as these
companies are transparent with data and protecting user privacy, does it still
really matter?!
[1] In
the U.S. ,
a declaratory judgement is a type of preventive justice. It often comes
after a controversy has risen. More precisely, it is "a court decision in
a civil case that tells the parties what their rights and responsibilities are,
without awarding damages or ordering them to do anything. Courts are usually
reluctant to hear declaratory judgment cases, preferring to wait until there
has been a measurable loss. But especially in cases involving important
constitutional rights (such as the First Amendment in Google's motion), courts
will step in to clarify the legal landscape" (http://www.law.cornell.edu/wex/declaratory_judgment).
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