Tech Law

Google’s Gag Motion Is Mainly a PR Gimmick

Google is asking the secretive United States Foreign Intelligence Surveillance Court to let it disclose information about its orders.

Such disclosures would be made without violating FISA or the Court’s rules of procedure, Google said.

This would be in line with Google’s publishing in its transparency report earlier this year the number of National Security Letters it received from the Federal Bureau of Investigation.

Google’s petition to the FISA Court follows revelations that it and other high-tech companies cooperated with the National Security Agency’s controversial PRISM program, which has stirred debate throughout the U.S. and abroad. All of the companies initially denied involvement.

“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,” Google spokesperson Nadja Blagojevic, told TechNewsWorld.

“However, greater transparency is needed, so we have petitioned the Foreign Intelligence Surveillance Court to allow us to publish aggregate numbers of national security requests, including FISA disclosures, separately,” Blagojevic continued. “Lumping national security requests together with criminal requests would be a backward step for Google and our users.”

Gotta Look Good

Google’s move “is a public relations exercise,” Larry Klayman, general counsel of Freedom Watch, which has filed a class-action lawsuit against all parties involved in the PRISM program, told TechNewsWorld. “It confirms their liability.”

Several high-tech companies, including Google, have been criticized for being “tacit accomplices” in the PRISM program, and Google’s petition “is at this point in time a public relations stunt and damage control,” remarked Yasha Heidari, managing partner at the Heidari Power Law Group.

“This is Google’s attempt to differentiate itself and claim it is acting in the best interest of the consumers,” he said.

Indeed, the petition includes much hand-wringing about media reports falsely alleging that Google provides the U.S. government with direct access to its systems and, hence, user records and communications.

What Google Wants

Google wants to restore its reputation and business, which have been hurt by what it characterizes as false or misleading reports in the media.

The company is seeking a declaratory judgment that it has a First Amendment right to publish — and that no applicable law or regulation prohibits it from publishing — two aggregate unclassified numbers: the total number of FISA requests it received, if any; and the total number of users or accounts the requests covered.

Each would be reported as a range, rather than an actual number, counted off in increments of 1,000. Google would not state which FISA authorities the U.S. government invoked to compel production of data. The information would be published as part of Google’s transparency report.

Deconstructing Google’s Request

A declaratory judgment is a court ruling that affirms the rights, duties or obligations of parties in a civil dispute, subject to appeal. It doesn’t on its own order any action to be undertaken by a party, or imply damages or an injunction.

So, in essence, Google is asking the FISA Court to do no more than affirm it has the right to publish the information it seeks to disseminate.

In fact, the information Google seeks to publish doesn’t really tell anyone much.

The publication of the data “is better than nothing, but not by much,” Heidari told TechNewsWorld.

However, Google and other companies that have complied with FISA requests “have an obligation to their shareholders, not to the American population at large,” Heidari pointed out.

In light of the controversy swirling around PRISM and disclosures by former NSA contractor Edward Snowden that the agency can tap anyone’s communications, “the likelihood of the Court granting Google’s requested relief is much higher now,” Heidari opined. “Had this been a couple of months ago, I think Google’s request would have been quickly denied.”

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