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Microsoft, Google to sue over FISA gag order

Google and Microsoft plan to sue the government, demanding the right to publicly discuss any surveillance requests served up by the FISA court.

Microsoft general counsel Brad Smith.
Declan McCullagh/

Stonewalling by the Department of Justice has led Google and Microsoft to decide to file a lawsuit so that they can publicly discuss Foreign Intelligence Surveillance Court-approved surveillance orders.

Microsoft general counsel Brad Smith announced Friday that the company, in collaboration with Google, would sue the government despite its statement on Thursday that it would publish some surveillance request information annually.

Google and Microsoft are requesting the ability to publish "aggregate information" about FISA court orders directed at the companies in the hopes of being more transparent to their customers, the companies have said.

Google originally filed the motion to claim a First Amendment right to publish information such as how many requests it has received from under the Foreign Intelligence Surveillance Act. Section 702 of the act was amended in 2008 to allow the government to declare even the number of requests issued under the act subject to gag orders.

Before the National Security Agency document leaks from Edward Snowden, the FISA orders had been declared so secret that Google, Microsoft, and other companies served with them were barred from acknowledging in public that they had received the requests.

As part of the procedure for the lawsuit to proceed, Google and Microsoft will be amending their petitions filed with the Foreign Intelligence Surveillance Court, a source close to the matter told CNET. The companies received a 10-day extension, so the government isn't expected to respond by Friday's deadline.

The government's response to the original filing's deadline was delayed six times by the Department of Justice, leading to frustration on the part of the tech companies, which has culminated in the announcement of the lawsuit.

The source, who requested anonymity because the person lacked authorization to speak on the record, said that Google and Microsoft will be amending their petitions to more closely reflect the details of an open letter signed by most major tech companies (PDF) and sent after the initial FISA court filing from the Center for Democracy and Transparency to the heads of the US government and intelligence agencies.

It is likely that the government will consolidate the various petitions into the Microsoft lawsuit to avoid potentially having disparate decisions for different companies.