If FISA’s Google Gag Isn’t Unconstitutional, I Don’t Know What Is

Google has filed a motion in the Foreign Intelligence Surveillance Court requesting a declaratory judgment that would release it from the requirements in secret court orders that bar it from making any public mention of government demands for user information.

In the motion, Google asserts that it has a First Amendment right to publish unclassified numbers, in this case the total number of Foreign Intelligence Surveillance Act (FISA) requests it receives and the total number of users that these requests cover. These numbers are not classified information, but Google is nevertheless prohibited from publishing them by the FISA Court.

In Google’s filing with the court, the company said that it would include these aggregate numbers in the Google Transparency Report, which is publishes every six months. Google said in its motion that the company does not plan to reveal which FISA authorities asked for the data. The company also said that it does not intend to release any details on what the data requests were for.

Let Google speak

This is not the first time that Google has raised this issue with federal authorities. In fact, Google’s chief legal officer, David Drummond, wrote to Attorney General Eric Holder and FBI Director Robert Mueller asking for greater transparency in releasing numbers for data requests and pointing out that keeping the numbers secret fueled speculation that Google was giving the government access to its servers.

In his letter, Drummond noted that the FBI has authorised the release of general numbers by Google in March 2013, long before the National Security Agency revelations made headlines. In fact, Google CEO Larry Page went out of his way to say that the claims of the company’s complicity in the data gathering were false.

Google is already releasing some consolidated information on the government’s data requests and wants to make the numbers more precise. What must be driving Google nuts is that it doesn’t appear that anything the company is asking for is a secret — it’s just prohibited by a court order. What Google is asking for is in effect not to be forced by a gag order to keep things secret that aren’t actually a secret.

In other words, Google is being held to a higher level of secrecy than someone who didn’t receive the court order might be. Google believes that the First Amendment to the Constitution gives it the right to disclose the information, and it wants the FISA Court to say so.

Google has a point. To criminalise otherwise legal activities by restricting a person’s right to free speech is clearly a violation of the First Amendment. What Google is doing here is to follow the rules and get a declaration from the court that the company is on safe ground.

Say no to prior restraint

The Supreme Court has ruled aggressively against prior restraint for decades, starting with a decision involving a tabloid newspaper in Minnesota. There’s no question that the FISA Court will find opposition from the Department of Justice and probably the Department of Defense saying that releasing any information (apparently information that’s already unclassified) is a threat to national security. But the national security card has been played before, most notably in the Pentagon Papers scandals during the Vietnam War.

Quite frankly, Google shouldn’t have to do this. If I could find the numbers that Google wants to publish and put them here in my column, I wouldn’t be breaking the law. I’m guaranteed freedom to say whatever I wish in terms of such speech as long as I don’t violate some specific, narrow guidelines such as revealing the movement of troops in wartime or in the most classic example, shouting “Fire!” in a crowded theater. To pre-emptively forbid the publishing of this information is clearly a case of prior restraint, something that the US Supreme Court has ruled for years is unconstitutional.

In the Pentagon Papers issue, The New York Times and The Washington Post were publishing documents calling into question the Johnson administration’s justifications for bringing about the full-scale war in Southeast Asia. The Court overturned injunctions that ordered the papers not to publish the papers.

Google the pamphleteer?

So the question now becomes, is Google somehow part of the press that’s protected by the First Amendment? It seems to me that the answer has to be that it is. Part of the reason the First Amendment exists is to protect the rights of what at the time were called pamphleteers, who were people that would distribute printed opinions regarding the government, politics and other topics.

Those pamphlets were frequently anonymous, they were distributed widely and their goal was to shine some light on real (or sometimes imagined) problems, changes that needed to be made or actions that should be taken. If this sounds familiar, it’s not unlike the role of bloggers on today’s Internet.

Google, as you’ve likely noted by now, publishes many such blogs. If the FISA Court’s prohibition on the release of information regarding data requests, especially when the information doesn’t contain classified information, isn’t a violation of Google’s First Amendment rights, I don’t know what it is.

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Originally published on eWeek.