Facebook Files Motion With Foreign Intelligence Surveillance Court Seeking Greater Transparency

By David Cohen 

Facebook continued its efforts to provide its users with information on government requests for data by joining other industry heavyweights in filing a motion with the Foreign Intelligence Surveillance Court in an effort to provide greater transparency.

The social network released its first Global Government Requests Report in August, after providing data for the six months ended Dec. 31, 2012, in June.

General Counsel Colin Stretch wrote in a Newsroom post announcing the filing:

Over the past several months, in the midst of press reports speculating about the nature and scope of government programs aimed at keeping people safe, we’ve repeatedly called for governments around the world to provide more details about the programs they operate. We’ve also urged them to allow companies to divulge information about the government orders and requests they receive, in a manner and to a degree that does not compromise legitimate safety concerns.

Those efforts initially met with some success. In June, as a result of discussions with the U.S. government, we and a number of other companies were permitted to release, within a range, the total number of law-enforcement requests for user data we received in a given period, including not just criminal matters, but also all U.S. national security-related requests (including FISA, as well as national security letters). That was an important step. It permitted us to release information that directly refuted many of the outlandish and false media reports circulating at the time. And it allowed us to make clear that a vanishingly small number of people who use Facebook — a tiny fraction of 1 percent — were the subject of any kind of U.S. government request in the past year.

But that one step is not enough. The actions and statements of the U.S. government have not adequately addressed the concerns of people around the world about whether their information is safe and secure with Internet companies. We believe there is more information that the public deserves to know, and that would help foster an informed debate about whether government security programs adequately balance privacy interests when attempting to keep the public safe. In particular, although we have been permitted to disclose a range of the total number of requests we have received and the number of users associated with those requests, we have not been permitted to specify even approximately how many of those requests may be national-security-related, nor have we been permitted to provide information identifying the number of those requests that seek the content of users’ accounts.

In recent weeks, it has become clear that the dialog with the U.S. government that produced some additional transparency at the outset is at this point unlikely to result in more progress. As a result, today, we are joining others in the industry in petitioning the Foreign Intelligence Surveillance Court to require the government to permit companies to disclose more information about the volume and types of national security-related orders they receive.

As we have said many times, we believe that while governments have an important responsibility to keep people safe, it is possible to do so while also being transparent. We hope and believe the action we take today will help spur the U.S. government to provide greater transparency about its efforts aimed at keeping the public safe, and we will continue to be aggressive advocates for greater disclosure.

And the social network said in its filing with the FISC:

Despite Facebook’s efforts to push for more transparency, which have included extensive discussions with government officials, the U.S. government has taken the position that Facebook is prohibited from disclosing the specific number and type of any such requests, as well as even aggregate numbers of any national security requests within ranges. Based on the government’s responses to similar requests made by both Google and Microsoft, Facebook understands that the government believes that publishing such information would be unlawful.

To appropriately and effectively respond to these inaccurate news reports and the related public concerns, Facebook seeks to be as transparent as possible regarding its receipt of orders under FISA and the FAA (FISA Amendments Act), if any. To that end, Facebook moves this court to declare that it may lawfully disclose the following aggregate unclassified numbers covering a six-month period (collectively, “the aggregate data”): The total number of FISA court orders it has received during the period, if any, under specific FISA authorities, such as physical search orders, business record orders, and wiretap and pen register/trap and trace orders; the total number of user accounts specified in such FISA orders; the total number of directives it has received during the period under U.S.C. 1881a, if any; and the total number of user accounts specified under such directives. Facebook further requests the ability to release, in aggregate numbers, the number of requests that called for content of communications, versus those that called for transaction or subscriber information.

Undoubtedly, the security of the nation is a compelling interest (see Haig vs. Agee, 453 U.S. 280, 307 [1981]). However, Facebook’s disclosure of aggregate data would not compromise the secrecy of the government’s surveillance or acquisition efforts. Facebook provides service to more than 1 billion subscribers; it is difficult to see how the disclosure of the aggregate data could make any individual user suspicious, much less aware, that he or she was the target of government intelligence-gathering. As one court has recognized in the context of analyzing the prohibition on disclosure of national security letters, the plausibility of the notion that disclosure of the receipt of government-issued national security orders may compromise a national security investigation diminishes as the size of the recipient’s customer base grows.

Readers: Will the Foreign Intelligence Surveillance Court grant the requests of Facebook, Google, and Microsoft?

Image courtesy of Shutterstock.

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