After Justice Department Allows Companies to Disclose Limited NSA Surveillance Info, TCP Vows to Fight for Greater Transparency
By Katherine Stern, Senior Counsel, Rule of Law Program

On January 27, the Department of Justice announced an agreement with Google, Microsoft, Facebook and other technology companies that will permit them to disclose more information than previously allowed about government surveillance requests targeting their users.  The change comes in response to lawsuits filed by the companies seeking greater disclosure in the wake of the public relations fallout from media reports of their role in surveillance conducted by the National Security Agency.

The Constitution Project believes the agreement represents a significant step that will give social networking and internet service providers some long-sought freedom to communicate more openly with their customers.  Although the government still has not allowed the degree of openness that the companies initially sought in their motions before the FISC, we agree with the companies involved that this is a welcome starting point for more reform.

Under previous rules, the companies could only disclose the total number of requests received, lumping together law enforcement and national security requests, and the total number of customers affected.  Under the new rules, tech companies will be allowed to provide a more detailed breakdown of that number, expressed in broad bands, after a six month delay, although they still won’t be allowed to say exactly what types of information they supplied, nor under which specific legal authority the government compelled its disclosure.  Moreover, new firms appear to be prohibited from publishing anything at all for two years.

While the new standards move in the direction of increased transparency, they fall well short of the recommendations of the President’s Review Group on Intelligence and Communications Technologies and the Privacy and Civil Liberties Oversight Board in this arena.  They are also considerably more limited than proposals such as Rep. Sensenbrenner’s and Sen. Leahy’s USA FREEDOM Act, legislation endorsed by TCP and other civil liberties and open government advocates.

Reportedly, one administration official told Politico that the agreement is “understood to resolve the question of transparency around national security.”  TCP disagrees.  While the companies collectively dismissed without prejudice their motions before the FISC, they indicated in a joint statement that they would “continue to encourage Congress to take additional steps to address all of the reforms we believe are needed.”  We will join them in that effort.

TCP’s Liberty and Security Committee has previously called for greater transparency in orders issued by the FISC.

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