Google to feds: Let us talk about government surveillance, please

Attorney General Eric Holder has prohibited tech companies from revealing what information they're legally required to disclose to the feds. Google wants to lift the gag orders.

Attorney General Eric Holder, shown here earlier today, has not permitted Google to disclose what information it is -- and isn't -- forced to turn over to the feds

Google today asked the U.S. government to lift a legal gag order and let it clear up speculation and erroneous reports about what information it's forced to turn over to the feds.

In an open letter to Attorney General Eric Holder and FBI Director Robert Mueller asking for "transparency," the Mountain View, Calif.-based company is effectively applying an unusual amount of public pressure to the Obama administration. President Obama has claimed to have"the most transparent administration in history," though critics have argued otherwise.

Google, Apple, Yahoo, Microsoft, Facebook, and other Internet companies were left reeling after a pair of articles last 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 today, the paper said the process met legal "standards" and was subject to "judicial review."

But for Silicon Valley companies that rely on user trust -- and are trying to usher in a future where more data is stored in the cloud -- even lingering misgivings over privacy are worth eliminating.

Today's letter, signed by David Drummond, Google's chief legal officer, asks for the right to disclose information about how many orders the company receives under the Foreign Intelligence Surveillance Act, and how broad they are. It says:

 Google has worked tremendously hard over the past 15 years to earn our users' trust. For example, we offer encryption across our services; we have hired some of the best security engineers in the world; and we have consistently pushed back on overly broad government requests for our users' data.

We have always made clear that we comply with valid legal requests. And last week, the director of national intelligence acknowledged that service providers have received Foreign Intelligence Surveillance Act (FISA) requests.

Assertions in the press that our compliance with these requests gives the U.S. government unfettered access to our users' data are simply untrue. However, government nondisclosure obligations regarding the number of FISA national security requests that Google receives, as well as the number of accounts covered by those requests, fuel that speculation.

We therefore ask you to help make it possible for Google to publish in our Transparency Report aggregate numbers of national security requests, including FISA disclosures -- in terms of both the number we receive and their scope. Google's numbers would clearly show that our compliance with these requests falls far short of the claims being made. Google has nothing to hide.

Google appreciates that you authorized the recent disclosure of general numbers for national security letters. There have been no adverse consequences arising from their publication, and in fact more companies are receiving your approval to do so as a result of Google's initiative. Transparency here will likewise serve the public interest without harming national security.

The Justice Department and the FBI did not immediately respond to a request for comment from CNET.

Google already releases many statistics about government surveillance as part of itstransparency 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."

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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.

Attorney General Eric Holder, who has not lifted a gag order on Internet companies

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 itstransparency 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

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Senators call for end to Justice Department's 'secret law'

Obama administration's secret interpretation of the Patriot Act allows it to vacuum up records on all Americans' phone calls. But an earlier effort to fix the law in December failed.

Sen. Ron Wyden has been saying for years that "the American people would be absolutely stunned" if they knew what kind of surveillance has been authorized by the Obama administration's secret Patriot Act interpretation

Obama administration's secret interpretation of the Patriot Act allows it to vacuum up records on all Americans' phone calls. But an earlier effort to fix the law in December failed.

Eight U.S. senators today seized on leaks from the National Security Agency to call for an end to a "secret law" that governs how intelligence agencies electronically spy on Americans.

Secret laws may seem like Kafkaesque jurisprudence borrowed from Soviet Russia, but last week's leak of a secret court order revealed the Obama administration has a secret interpretation of the Patriot Act that allows it to vacuum up logs of all domestic phone calls on a daily basis.

"It is impossible for the American people to have an informed public debate about laws that are interpreted, enforced, and adjudicated in complete secrecy," Sen. Ron Wyden, an Oregon Democrat and member of the Senate Intelligence committee, said in a statement. "When talking about the laws governing intelligence operations, the process has little to no transparency." Sen. Patrick Leahy, the head of the Judiciary committee, also signed on to today's request.

Wyden, along with senators Mark Udall (D-Colo.) and Rand Paul (R-Ky.), have warned for years of the problems with secret interpretations of the Patriot Act. A CNET article from 2011 quoted him as saying at the time: "I believe that the American people would be absolutely stunned" if they knew what was actually going on.

The secret order from U.S. District Judge Roger Vinson, who serves on the secret Foreign Intelligence Surveillance Court, wasdisclosed last week by the Guardian newspaper.

Vinson's order relies on Section 215 of the Patriot Act, 50 USC 1861, better known as the "business records" portion. It allows FBI agents to obtain any "tangible thing," including "books, records, papers, documents, and other items," a broad term that includes dumps from private-sector computer databases with limited judicial oversight -- and not what politicians ever envisioned when enacting the Patriot Act in October 2001.

The eight senators are trying again to enact legislation that would, in general, require decisions of the Foreign Intelligence Surveillance Court to be revealed to the public. It has loopholes, however, including allowing the attorney general to make a "determination that a decision may not be declassified" because of national security reasons.

It was offered -- unsuccessfully -- as an amendment in December 2012 during a debate over renewing the Foreign Intelligence Surveillance Act. The renewal, without the amendment attached, was approved by a vote of 73 to 23.

Separately, Google today asked Attorney General Eric Holder to lift a legal gag order that has prevented the company from revealing what information it's legally required to disclose to the feds.

Read more ...

Google to feds: Let us talk about government surveillance, please

Attorney General Eric Holder has prohibited tech companies from revealing what information they're legally required to disclose to the feds. Google wants to lift the gag orders.

Attorney General Eric Holder, shown here earlier today, has not permitted Google to disclose what information it is -- and isn't -- forced to turn over to the feds

Google today asked the U.S. government to lift a legal gag order and let it clear up speculation and erroneous reports about what information it's forced to turn over to the feds.

In an open letter to Attorney General Eric Holder and FBI Director Robert Mueller asking for "transparency," the Mountain View, Calif.-based company is effectively applying an unusual amount of public pressure to the Obama administration. President Obama has claimed to have"the most transparent administration in history," though critics have argued otherwise.

Google, Apple, Yahoo, Microsoft, Facebook, and other Internet companies were left reeling after a pair of articles last 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 today, the paper said the process met legal "standards" and was subject to "judicial review."

But for Silicon Valley companies that rely on user trust -- and are trying to usher in a future where more data is stored in the cloud -- even lingering misgivings over privacy are worth eliminating.

Today's letter, signed by David Drummond, Google's chief legal officer, asks for the right to disclose information about how many orders the company receives under the Foreign Intelligence Surveillance Act, and how broad they are. It says:

 Google has worked tremendously hard over the past 15 years to earn our users' trust. For example, we offer encryption across our services; we have hired some of the best security engineers in the world; and we have consistently pushed back on overly broad government requests for our users' data.

We have always made clear that we comply with valid legal requests. And last week, the director of national intelligence acknowledged that service providers have received Foreign Intelligence Surveillance Act (FISA) requests.

Assertions in the press that our compliance with these requests gives the U.S. government unfettered access to our users' data are simply untrue. However, government nondisclosure obligations regarding the number of FISA national security requests that Google receives, as well as the number of accounts covered by those requests, fuel that speculation.

We therefore ask you to help make it possible for Google to publish in our Transparency Report aggregate numbers of national security requests, including FISA disclosures -- in terms of both the number we receive and their scope. Google's numbers would clearly show that our compliance with these requests falls far short of the claims being made. Google has nothing to hide.

Google appreciates that you authorized the recent disclosure of general numbers for national security letters. There have been no adverse consequences arising from their publication, and in fact more companies are receiving your approval to do so as a result of Google's initiative. Transparency here will likewise serve the public interest without harming national security.

The Justice Department and the FBI did not immediately respond to a request for comment from CNET.

Google already releases many statistics about government surveillance as part of itstransparency 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."

Read more ...