Following Google, Microsoft also challenges DOJ gag order

Software giant argues that U.S. government restrictions on what it can disclose constitute a "content-based restriction on speech."

Following Google's lead, Microsoft has asked a secretive U.S. surveillance court to lift a gag order prohibiting it from disclosing more information about government requests it receives for customer data.

The software giant cited the First Amendment in its nine-page filing last week with the Foreign Intelligence Surveillance Court, arguing that U.S. government restrictions on what it can disclose constitute a "content-based restriction on speech." The filing was made public Wednesday.

Google filed a similar motion with the court last week, arguing that it has "a right under the First Amendment to publish" summary statistics about requests made under the Foreign Intelligence Surveillance Act.

Google, Apple, Yahoo, Microsoft, Facebook, and other Internet companies have been left reeling after a pair of articles earlier this month alleged that they provided the National Security Agency with "direct access" to their servers through a so-called PRISM program. Subsequent reporting by CNET revealed that this was not the case, and the Washington Post backtracked from its original story on PRISM.

Microsoft's filing (see below) noted that "the media erroneously reported" alleged details of the program, a situation Microsoft said it hopes to "correct the misimpression ... that it provides the United States government with direct access to its servers and network infrastructure."

Along with other large Internet companies, Microsoft has released only totals that combine legal requests made under the Foreign Intelligence Surveillance Act with other related to criminal investigations involving fraud, homicide, and kidnapping, making it impossible to determine how many FISA requests they have received.

Microsoft contends that it should be allowed to reveal in aggregate how many FISA orders they receive each year.

"Given the size of Microsoft's user base, the Government can not reasonably contend that disclosure of the Aggregate Data could lead any particular individual user to infer that he or she had been targeted," Microsoft wrote in its court challenge.

A Justice Department spokesperson declined to comment on Microsoft's filing.

Microsoft FISC Motion

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