Microsoft has filed an amended motion today saying that it has a First Amendment right to disclose aggregate data on the U.S. national intelligence surveillance orders it receives.
Microsoft, along with other large tech companies, have come under fire for their role in U.S. national security surveillance. In response, the companies are seeking to clarify to the public how many such security orders they receive and something about the nature of those orders.
The move follows the failure of negotiations in late August between the U.S. government and several tech companies, including Microsoft, to allow the companies to be more transparent about the requests they receive under the Foreign Intelligence Surveillance Act (FISA). Under FISA, companies are severely limited in what they are able to disclose about such orders.
Because the negotiations failed, Microsoft is continuing with the motion it filed in June, asking the Foreign Intelligence Surveillance Court (FISC) for permission to disclose the aggregate number of orders it gets under FISA and the FISA Amendments Acts specifically, apart from local, state and federal law enforcement requests. It’s also seeking to disclose the total number of accounts affected by such orders.
(The government had previously allowed the companies to publish data on the national security orders it received but only for a certain time period and only if that data were bundled with law enforcement requests from other U.S. national, state and local law enforcement agencies.)
Google had filed a similar motion and also amended its motion today. In addition, Facebook and Yahoo filed similar motions with the FISC today.
Microsoft’s amended motion today adds more specificity to what it is seeking, including the disclosure of: (1) the number of orders it received that require the production of non-content data, and the number of accounts affected, and (2) the number of orders it received that require the production of content and non-content data, and the number of accounts affected.
“While the preservation of national security is undoubtedly a compelling interest, the Government has not demonstrated — and on the facts of this case, cannot establish — that restraining Microsoft from disclosing the Aggregate Data is narrowly tailored to serve that compelling interest,” Microsoft said in in the amended motion. “Without such a showing, a restraint on Microsoft’s disclosure of the Aggregate Data violates the First Amendment.”