Google Challenges Gag Orders Relating to Surveillance Programs, Citing First Amendment
Google asked the secretive Foreign Intelligence Surveillance Court on Tuesday to ease long-standing gag orders over data requests it makes, arguing that the company has a constitutional right to speak about information it’s forced to give the government.
The legal filing, which cites the First Amendment’s guarantee of free speech, is the latest move by the California-based tech giant to protect its reputation in the aftermath of news reports about sweeping National Security Agency surveillance of Internet traffic. [...]
In the petition, Google is seeking permission to publish the total numbers of requests the court makes of the company and the numbers of user accounts they affect.
The challenge is not uncharacteristic—Google recently filed another lawsuit challenging gag provisions in government National Security Letters on First Amendment grounds. Query whether any of the other eight companies named in recent leaks will join Google’s latest suit.
More generally, the suit highlight another twist in the debate over government surveillance: the reputational and financial burdens that surveillance programs (and “ordinary” law enforcement requests for user data) impose on private industry.
If history is any guide, these burdens may lead to increasing pushback from industry. Fourth Amendment nerds will recall that telephone companies filed an amicus brief against the government’s position in the wiretapping case Olmstead v. United States; the following passage from that brief was quoted by Justice Brandeis in his famous dissent:
“Criminals will not escape detection and conviction merely because evidence obtained by tapping wires of a public telephone system is inadmissible, if it should be so held; but, in any event, it is better that a few criminals escape than that the privacies of life of all the people be exposed to the agents of the government, who will act at their own discretion, the honest and the dishonest, unauthorized and unrestrained by the courts. Legislation making wiretapping a crime will not suffice if the courts nevertheless hold the evidence to be lawful.”
If you’re interested, I’ve written a piece about Google’s strategic efforts to protect privacy, titled Google’s Brilliance, on my blog.