Ever since Edward Snowden leaked a couple of top-secret documents about government phone and Internet data-gathering, Google has pushed back. It is not a participant, willing or no, in a broad data dragnet, the company insisted. No one at the National Security Agency has any kind of direct or open-ended access to its servers. It was “very surprised,” in fact, to learn that the NSA is apparently collecting the “metadata” of every phone call placed within, to or from the United States.
On Tuesday the tech firm asked the Justice Department that it be allowed to prove its claims.
At question are orders issued under the Foreign Intelligence Surveillance Act. The Foreign Intelligence Surveillance Court meets in secret to vet government data demands, and the instruments issued under its supervision come with a gag order attached, forbidding recipient companies such as Google from revealing anything to the public. But Google wants permission to say more about them — without revealing their contents: How many FISA orders does it get in a year? How many Google users are implicated in those orders?
Google recently got the government’s OK to release that sort of information about “so-called” national security letters (NSLs), another kind of secret information request. The company’s latest transparency report noted that the government sent it fewer than 1,000 NSLs last year, and that those data demands related to between 1,000 and 1,999 accounts. To anyone concerned about the government’s reach, and particularly the use of warrantless information requests, this material is pretty useful — not only giving a small glimpse into how much the government is exercising one of its authorities to combat terrorism but also allowing the public to track the government’s use of that authority over time.
The Obama administration should allow Google and other tech firms to say a little more about their relationship with the government. But the transparency should not stop there. The revelation that so surprised Google — that the NSA is collecting all that phone metadata — apparently relies on a novel interpretation of Section 215 of the Patriot Act, a provision that allows the government to obtain business records relevant to national security investigations. We don’t see why the program itself had to be a secret, and we don’t see why the legal rationale for it shouldn’t be released, as well.
Since Snowden’s leaks, government officials have warned that revealing too much information about the government’s intelligence-gathering could hamper the collection of critically important information. We won’t argue with that. But if the government is to live up to its responsibilities to the public — and if it is to maintain support for its intelligence-gathering techniques — the public must know as much as possible about how it is interpreting and applying the law.
The Washington Post (June 13)