Tech firms furious after denied full view of government reply to FISA court

The companies were provided only a redacted version of the government's Sept. 30 response

Microsoft, Google, Yahoo, Facebook and LinkedIn are objecting to the U.S. government's decision to provide them only a redacted version of its response to the Foreign Intelligence Surveillance Court to a request by the companies that they be allowed to publish information on users' data requests from the government.

The companies said in a filing in the court Tuesday that they have been provided only a "heavily redacted version" of the government's submissions, which included its response and a supporting declaration, and all requests for greater access have been rejected.

The secrecy surrounding the government's response comes even as legislators and privacy groups are asking for greater transparency after former National Security Agency contractor, Edward Snowden, disclosed that the government was engaged in bulk collection of phone data and had access to emails and other content on servers of the Internet companies.

The Internet companies have denied such an arrangement with the NSA and see the petition before the FISC as a way to convince users that they are not sharing data in bulk with the government. The companies have asked the court for permission to publish aggregate data about any orders or directives that they may have received under FISA or the FISA Amendment Act.

In a Sept. 30 filing, the U.S. Department of Justice opposed the requests by the tech companies to publish the number of surveillance requests they receive. "Releasing information that could induce adversaries to shift communications platforms in order to avoid surveillance would cause serious harm to the national security interests of the United States," DOJ lawyers wrote in the redacted brief.

The government's decision to withhold information in its response of Sept. 30 is unjustified and unconstitutional, the companies wrote in the filing. The government's response was to provide the reason why it seeks to keep the number of FISC orders or FAA directives secret, and the government has not argued that sharing "those reasons with the providers or their counsel would endanger national security," the companies wrote in the Tuesday filing.

As the pages devoted to the government's reasoning for refusal are "almost entirely redacted" in the Sept. 30 filing, the companies said they have no way to respond to the government.

The companies said that they have repeatedly talked with the government to get access to the unredacted version of the government's filings, and suggested workarounds such as allowing the review of the unredacted response by counsels who already have "top secret" clearances or under non-disclosure agreements.

The companies have asked the court to strike the redacted parts of the Sept. 30 filing, unless the government provides access to them to its lawyers.

John Ribeiro covers outsourcing and general technology breaking news from India for The IDG News Service. Follow John on Twitter at @Johnribeiro. John's e-mail address is john_ribeiro@idg.com

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