Microsoft is proceeding with a lawsuit that it hopes will let it publish court orders made under the FISA surveillance law. In late June, the company filed a motion with the court that oversees much NSA surveillance, asking for permission to publish the number of secret court orders it received under the FISA Amendments Act. Since then, general counsel Brad Smith says Microsoft has spoken with the Department of Justice six times and extended the deadline for reply to the suit. But today, he says the parties failed to reach an agreement, leaving Microsoft no choice but to continue with the suit. A document published by ZDNet shows the deadline for government response is later today.
"While we appreciate the good faith and earnest efforts by the capable government lawyers with whom we negotiated, we are disappointed that these negotiations ended in failure," says Smith. Interestingly, though, Microsoft seems to want more than it indicated in its original court filing. The court motion asks for permission to publish "aggregate statistics concerning any orders and/or directives" that Microsoft received under the FISA Amendments Act. But in his post, Smith says that simply publishing numbers isn't enough.
"We are disappointed that these negotiations ended in failure."
"We believe it is vital to publish information that clearly shows the number of national security demands for user content, such as the text of an email," he says. "These figures should be published in a form that is distinct from the number of demands that capture only metadata such as the subscriber information associated with a particular email address." That's well beyond anything we've seen from a company or the government, and it doesn't seem likely to happen any time soon. As Smith notes, though, we already saw an unprecedented change this morning, when Director of National Intelligence James Clapper announced he would begin declassifying how many people are targeted under various surveillance programs.
Microsoft wasn't the first company to file a request to publish. Google sent one a few days before on June 18th, and Smith's statements seem to indicate that the two companies were involved in negotiations together. "Over the past several weeks Microsoft and Google have pursued these talks in consultation with others across the technology sector," he says. "With the failure of our recent negotiations, we will move forward with litigation in the hope that the courts will uphold our right to speak more freely." Google, however, does not appear to have made a public statement on the matter, and it's not clear to what extent the two companies have combined their efforts. We've reached out to confirm whether Google is also continuing with its lawsuit, something that seems highly likely at this point.
Update: Google has responded with the following statement:
While the government's decision to publish aggregate information about certain national security requests is a step in the right direction, we believe there is still too much secrecy around these requests and that more openness is needed. That's why we, along with many others, have called on the U.S. government to allow us to publish specific numbers about both FISA and NSL requests.