Google challenges U.S. gag order in NSA flap

June 18th, 2013

Taking yet another step in its struggle to distance itself from the National Security Administration’s controversial PRISM data mining program, Google this afternoon asked the Foreign Intelligence Surveillance Court to relax gag orders over data requests it makes.

Claudia Rast, a privacy attorney at Butzel Long, says the move may gain the search giant public relations benefits. But FISA is not likely to amend the standing gag order, she says.

The legal filing cites the First Amendment’s guarantee of free speech. Among the nine tech companies shown by whistleblower Edward Snowden to have been handing over consumer data to the government , Google has been the most aggressive in attempts to cast itself as co-operating the least.

“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,” the company said in a statement.

Google emailed the statement to USA TODAY.

“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,” Google said in a statement.

“Lumping national security requests together with criminal requests — as some companies have been permitted to do — would be a backward step for our users,” Google said.

Snowden was a low-level consultant who admitted to stealing documentation of NSA anti-terrorism programs that involved monitoring of phone records and Internet behaviors of consumers.

Last week, both Facebook and Microsoft released details on the number of legal orders made to them by the NSA. But Google wants to disclose even more details, such as time frames of requests. Under federal law, the NSA is permitted to issue such requests under complete secrecy.

Rast says FISA is not in a position to declassify any information the NSA wants to keep secret, including presumably innocuous information Google wants permission to divulge. It probably will take a policy decision by the Obama Administration or an act of Congress to compel NSA to relax the gag order, as Google wants.

“This is a PR issue,” Rast says. “Basically the companies are held to not disclose any aspect of it (PRISM) at all. And they’re struggling to come up with a way to defend the privacy of their customers within the context of the FISA court issue.”

Now that the existence of PRISM is public knowledge, the companies have a big incentive to disclose the precise nature of what’s being handed over to the government.

“Google is now bending over backwards every chance it can in order to paint a public perception of itself as standing up to the U.S. Government,” says Scott Cleland, president of Precursor, a research consultancy for Fortune 500 companies, some of whom are Google competitors. “That’s a tough sell because before this NSA spying revelation, Google portrayed itself publicly as having exceptionally close ties to the U.S. Government at the highest levels.”

At stake are billions in profits the companies anticipate from products and services tied into the Internet cloud. Consumer trust is required for that projected commerce to fully mature.

Google has by far the most to protect.The search giant is expected to make more from mobile ads than all other companies combined for the second straight year, totaling nearly $8.9 billion in mobile ad revenue in 2013, according to projections from research firm eMarketer. That would give Google 56% of the total mobile ad market. And that’s only a fraction of what Google earns from its dominant, bread-and-butter search term advertising business. Google’s revenue topped $50 billion in 2012.

“Google’s court filing is a step in the right direction,” says Josh Bell, media strategist at the American Civil Liberties Union. “The public has a right to know more about the government’s sweeping surveillance programs so that it can judge for itself whether they are necessary and legal.”