Justice Dept. weighs Google's request to lift NSA gag order

Microsoft, Google, and Facebook are asking the Obama administration for permission to clear their names by disclosing surveillance details. The Justice Department has not yet responded.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
4 min read
Attorney General Eric Holder, who has not lifted a gag order on Internet companies.
Attorney General Eric Holder, who has not lifted a gag order on Internet companies. Getty Images

The U.S. Department of Justice confirmed Tuesday that it is considering requests from Google, Facebook, and Microsoft that would let them clear their names after allegations they opened their networks to government spies, although U.S. Attorney General Eric Holder has not yet issued a decision on the matter.

In response to queries from CNET, the Justice Department said late this afternoon: "The department has received the letter from the chief legal officer at Google. We are in the process of reviewing their request."

David Drummond, Google's chief legal officer, sent an open letter to Holder and FBI Director Robert Mueller today asking them to lift a gag order so they could clear up misconceptions about National Security Agency eavesdropping. The ongoing gag order fuels incorrect "speculation," Drummond said.

Microsoft followed shortly afterward with a statement saying "government should take action to allow companies to provide additional transparency." And Facebook's general counsel, Ted Ullyot, called on the feds to allow "companies to include information about the size and scope of national security requests we receive, and look forward to publishing a report that includes that information."

The three requests from some of the United States' largest tech companies increases pressure on the Obama administration to permit more disclosure of what's happening in terms of national security-related surveillance. So does a parallel move today by Democratic senators to support legislation that would partially lift the veil on the secret Foreign Intelligence Surveillance Court.

Google, Apple, Yahoo, Microsoft, Facebook, and other Internet companies were left reeling after a pair of articles on Thursday alleged that they provided the National Security Agency with "direct access" to their servers. By late Friday, however, CNET reported that was not true, and the Washington Post backtracked from its original story on PRISM. In an editorial Tuesday, the paper said the process met legal "standards" and was subject to "judicial review."

Also today, Google told Wired that: "When required to comply with these requests, we deliver that information to the U.S. government -- generally through secure FTP transfers and in person. The U.S. government does not have the ability to pull that data directly from our servers or network."

Google already releases many statistics about government surveillance as part of its transparency report, including, as of March, information on secret National Security Letters sent by the FBI. But a source familiar with the situation said the company has not secured permission to disclose information about secret court orders.

James Clapper, the head of national intelligence, confirmed last week that the Internet companies were receiving legal orders sent to them "pursuant to Section 702 of the Foreign Intelligence Surveillance Act."

After the Foreign Intelligence Surveillance Court limited a Bush-era warrantless surveillance program's scope, Congress enacted the FISA Amendments Act, which established a new procedure for foreign surveillance.

That Section 702 procedure works like this: The Justice Department must demonstrate that its surveillance will not intentionally target anyone present in the United States or any American who's overseas. And the surveillance process must comply with the Fourth Amendment.

Section 702 also requires that the government obtain the secret Foreign Intelligence Surveillance Court's approval of "targeting" and "minimization" procedures, and that the court review the agencies' certification describing how proposed surveillance techniques will comply with the law. Judges must consider whether the targeting procedures are "reasonably designed" to exclude Americans and purely domestic surveillance.

A former government official who is intimately familiar with this process of data acquisition and spoke on condition of anonymity told CNET last week that the government delivers an order to obtain account details about someone who's specifically identified as a non-U.S. individual, with a specific finding that they're involved in an activity related to international terrorism. Both the contents of communications and metadata, such as information about who's talking to whom, can be requested.

Amnesty International and journalists launched a legal challenge to Section 702 (which is sometimes called 1881a, for its location in the law books). They argued their confidential communications with foreign correspondents would be intercepted under Section 702 in violation of the Fourth Amendment. But in February 2013, the U.S. Supreme Court rejected their challenge by a 5-4 vote, with Justice Samuel Alito writing that their allegations were too "speculative" and the Section 702 process is subject to ongoing "oversight" and "review."

Here are the full statements from Microsoft and Facebook:

"As Mark said last week, we strongly encourage all governments to be much more transparent about all programs aimed at keeping the public safe. In the past, we have questioned the value of releasing a transparency report that, because of exactly these types of government restrictions on disclosure, is necessarily incomplete and therefore potentially misleading to users. We would welcome the opportunity to provide a transparency report that allows us to share with those who use Facebook around the world a complete picture of the government requests we receive, and how we respond. We urge the United States government to help make that possible by allowing companies to include information about the size and scope of national security requests we receive, and look forward to publishing a report that includes that information." -- Ted Ullyot, general counsel, Facebook

"Permitting greater transparency on the aggregate volume and scope of national security requests, including FISA orders, would help the community understand and debate these important issues. Our recent Report went as far as we legally could and the government should take action to allow companies to provide additional transparency." -- Microsoft

Also today, Sen. Al Franken, a Minnesota Democrat and head of a Senate privacy panel, downplayed concerns about NSA surveillance, saying: "I availed myself of [briefings by executive branch officials] so nothing surprised me and the architecture of these programs I was very well aware of."

Last updated at 6:50 p.m. PT