Since The Guardian and The Washington Post published a series of leaked documents, companies named as participants in the PRISM surveillance program have attempted to set right what they call "misleading" claims about their data. Earlier this month, Google asked the attorney general and FBI director to let it include requests made under the controversial FISA rules in its periodic transparency report, which details the number of requests for user information that it receives. Now, the company has filed a motion asking the Foreign Intelligence Surveillance Court to allow it to publish estimated numbers of FISA requests without fear of reprisal.
"Google's reputation and business has been harmed by the false or misleading reports in the media, and Google's users are concerned by the allegations," wrote attorney Albert Gidari. "Google must respond to such claims with more than generalities. Moreover, these are matters of significant weight and importance, and transparency is critical to advancing public debate in a thoughtful and democratic manner." While Google, Microsoft, Facebook, and others have attempted to get permission to publish FISA request numbers, Google recently backed out of a deal that would have allowed them to publish numbers — but only as part of general law enforcement requests, preventing users from seeing how many FISA requests actually came in.
Google argues the First Amendment should allow companies to reveal FISA numbers
FISA requests aren't officially classified information, but gag orders forbid companies from disclosing them. In order to get around this, Google argues that the First Amendment gives it the right to publish general numbers of requests, and it's asking the court to issue a statement confirming this. If its request is granted, Google will have permission to publish two things: The total number of requests made under FISA and the number of users or accounts that are affected. The First Amendment defense has been used as a defense against other gag orders, but Google hasn't used it this prominently before.
Neither of these numbers, of course, will actually be exact. Google wants to copy the framework it uses for national security letters, the "secret subpoenas" sent by the FBI. That means that it would offer vague ranges for requests and users: national security letter numbers are published in intervals of 1,000.
In the past weeks, companies have started to publish more general information about the number of requests they receive from governments. Yahoo, for example, said it received between 12,000 and 13,000 requests from government bodies within the last six months. Because of the aforementioned rules, however, it can't break out the number of FISA orders, meaning that these numbers are a broad overview of law enforcement requests.