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The U.S. Department of Justice filed a motion in the Foreign Intelligence Surveillance Court today opposing tech companies’ bid to disclose to their users that the government is spying on their data.

That information is “classified,” the government said in its brief, and the prohibitions of disclosure are First Amendment-friendly because “they are narrowly tailored to promote compelling national security interests.” And just in case neither of those arguments work, the government also said, a little snootily, that the FISA court that is hearing this issue has “limited jurisdiction” and can’t compel the government to permit for greater openness, even if it finds in favor of Google, Microsoft, Facebook, Yahoo, and LinkedIn.

So there.

This case is the latest chapter in the PRISM story, in which it became clear that that NSA is spying on American citizens’ communications, probably breaking U.S. law, and accessing social, search, mail, and connection data about U.S. nationals from the world’s top technology companies … which also happen to be American. Those companies deny that they’ve given the NSA and FBI access to their databases, but acknowledge that they do get requests for user data that they are not allowed to talk about. This case is about at least allowing them to tell people that their data has been surveilled.


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Motion Declaratory Judgement 131002 by John Koetsier

To date, the government has not permitted that request and is now opposing it in court. However, the government says, it is still all about being open:

“The United States Government firmly supports a policy of appropriate transparency with respect to its intelligence efforts,” the government wrote in the brief. But national security trumps transparency. “Releasing information that could induce adversaries to shift communications platforms in order to avoid surveillance would cause serious harm to the national security interests of the United States.”

That’s really, really hard to believe.

I mean, seriously, are there still terrorist bad guys — the real ones, 9/11-type planners — who wouldn’t now be aware that virtually every major American company’s databases and user information is accessible by the NSA, perhaps without any due process or legalities, but certainly with a court order? And that if the American three-letter-agencies don’t catch it, the British GCHQ will?

In the interests of transparency, the U.S. says, it will permit companies to report the number of National Security Letters demanding customer data that they receive — in number ranges, and in aggregate, and on a periodic basis — and it will report a national annual total on a yearly basis.

In a statement, Google said that it was disappointed with the DOJ’s response:

“We’re disappointed that the Department of Justice opposed our petition for greater transparency around FISA requests for user information. We also believe more openness in the process is necessary since no one can fully see what the government has presented to the court.”

And Microsoft — which was singled out for particular finger-pointing in the government’s brief due to its request to disclosed more fine-grained data — said that it would continue with the legal process:

“We will continue to press for additional transparency, which is critical to understanding the facts and having an informed debate about the right balance between personal privacy and national security.”

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