Secret court lifts veil, slightly, on Google, Microsoft lawsuits

A Foreign Intelligence Surveillance Court judge breaks with tradition by taking a tiny step toward more openness in lawsuits brought by Google and Microsoft. They're trying to clear their names.

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
3 min read
Attorney General Eric Holder, shown here in a file photo, has refused to allow Google, Microsoft, or other Internet companies to reveal how many secret FISA requests they have received.
Attorney General Eric Holder, shown here in a file photo, has refused to allow Google, Microsoft, or other Internet companies to reveal how many secret FISA requests they have received. Getty Images

The most secretive court in the nation, which has been criticized for authorizing domestic surveillance by the National Security Agency, has taken a tiny step toward openness in lawsuits brought by Google and Microsoft.

CNET has learned that Reggie Walton, the presiding judge of the Foreign Intelligence Surveillance Court, told the Obama administration last week that -- barring any objections from the government -- he would take the unusual step of disclosing procedural information about the Internet companies' litigation.

The Department of Justice responded yesterday by saying it had no objections. Neither Google nor Microsoft's legal briefs "contain information that is now classified, nor information that should be held under seal," the department said in a response submitted by John Carlin, the acting assistant attorney general for national security.

Edward Snowden, the former NSA contractor now staying in the transit area of Moscow's Sheremetyevo Airpot, has leaked a series of classified documents that outlined how the spy agency vacuums up Americans' confidential communications. The disclosures have roiled Washington officialdom and prompted a high-level diplomatic tussle over whether or not Russia will deport Snowden to face criminal charges under the Espionage Act.

Google, Apple, Yahoo, Microsoft, Facebook, and other Internet companies were left reeling after a pair of articles earlier this month, based on one of Snowden's disclosures, alleged that they provided the NSA with "direct access" to their servers through a so-called PRISM program.

Reggie Walton, presiding judge of the Foreign Intelligence Surveillance Court.
Reggie Walton, presiding judge of the Foreign Intelligence Surveillance Court. U.S. District Court

By the next day, however, CNET reported that was incorrect, and the Washington Post backtracked from its original story on PRISM, eventually concluding there is no evidence that "the privacy of any American was illegally or improperly invaded." Google's filing before the surveillance court said the initial news coverage was "misleading," and Microsoft's lawyers called it "inaccurate."

The two companies, which have flatly denied providing any government agency with direct access to their servers, filed the lawsuits to try to clear their names. They say they respond to government requests for individual account data only when they're legally compelled to do so -- in cases ranging from kidnapping to missing persons to terrorist investigations -- and want permission to divulge more information publicly.

Microsoft says it received a combined total of "between 6,000 and 7,000" orders from federal, state, and local government agencies for "between 31,000 and 32,000 consumer accounts" during the six months that ended in December 2012. Facebook's total: up to 10,000 requests for up to 19,000 accounts. Apple's total: up to 5,000 requests for up to 10,000 accounts or devices. Yahoo disclosed receiving up to 13,000 requests, but did not say how many user accounts were swept in. Google has asked for permission to be far more specific.

Walton, the FISC's presiding judge, gave the Justice Department until July 9 to respond to the requests from Google and Microsoft to disclose summary statistics about orders received under Section 702 of the FISA Amendments Act, which became look in 2008. The pair of companies have until July 16 to submit their replies.

Section 702 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.

The Justice Department had the option of objecting to allowing this phase of the litigation to take place publicly by claiming either of the company's requests "contains classified information" or "information that is or should be sealed."

Walton defended the court last week against charges it allowed bulk surveillance by the NSA with limited oversight. In a statement to Reuters, he said: "The perception that the court is a rubber stamp is absolutely false. There is a rigorous review process of applications submitted by the executive branch, spearheaded initially by five judicial branch lawyers who are national security experts, and then by the judges, to ensure that the court's authorizations comport with what the applicable statutes authorize."