Google Challenges Gag Orders Relating to Surveillance Programs, Citing First Amendment

Google has decided to back up its calls for more transparency regarding government surveillance with a legal challenge Stamp_US_1977_2c_Americanato the gag orders that forced it into silence. The Washington Post reports:

Google asked the secretive Foreign Intelligence Surveillance Court on Tuesday to ease long-standing gag orders over data requests it makes, arguing that the company has a constitutional right to speak about information it’s forced to give the government.

The legal filing, which cites the First Amendment’s guarantee of free speech, is the latest move by the California-based tech giant to protect its reputation in the aftermath of news reports about sweeping National Security Agency surveillance of Internet traffic. […]

In the petition, Google is seeking permission to publish the total numbers of requests the court makes of the company and the numbers of user accounts they affect.

The challenge is not uncharacteristic—Google recently filed another lawsuit challenging gag provisions in government National Security Letters on First Amendment grounds.  Query whether any of the other eight companies named in recent leaks will join Google’s latest suit.

More generally, the suit highlight another twist in the debate over government surveillance: the reputational and financial burdens that surveillance programs (and “ordinary” law enforcement requests for user data) impose on private industry.

If history is any guide, these burdens may lead to increasing pushback from industry.  Fourth Amendment nerds will recall that telephone companies filed an amicus brief against the government’s position in the wiretapping case Olmstead v. United States; the following passage from that brief was quoted by Justice Brandeis in his famous dissent:

“Criminals will not escape detection and conviction merely because evidence obtained by tapping wires of a public telephone system is inadmissible, if it should be so held; but, in any event, it is better that a few criminals escape than that the privacies of life of all the people be exposed to the agents of the government, who will act at their own discretion, the honest and the dishonest, unauthorized and unrestrained by the courts. Legislation making wiretapping a crime will not suffice if the courts nevertheless hold the evidence to be lawful.”

If you’re interested, I’ve written a piece about Google’s strategic efforts to protect privacy, titled Google’s Brilliance, on my blog.

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4 Responses

  1. I agree that this strategy is brilliant. Although the case could be made that Google’s suit is in reaction to the recent press and more of a PR move than anything else, it is nonetheless nice to see the private sector hold the public in check. Regardless of the outcome, it is great to see someone make the case that public institutions are not inherently better at protecting the privacy and security than public institutions. Both are open to the same frailities of human incompetence.

  2. Brett Bellmore says:

    A more brilliant strategy would be to reluctantly ‘admit’ that they’ve been hacked, and the relevant data released on the web by clever hackers. (In their own employ, if it needs to be said.) THIS makes a show of wanting the data out there, while almost certainly NOT resulting in it’s release.

  3. Ken Rhodes says:

    Brett’s first sentence suggests a perfect tactical solution to what might be perceived as a strategic problem.

    And his second sentence addresses Charlie’s point “Although the case could be made …etc.” Yeah, it sure looks that way, doesn’t it?

  4. PrometheeFeu says:

    @Brett Bellmore:

    Until the Feds wise up to this and toss a bunch of people in jail…