Google takes on FBI, fighting against National Security Letter

Google is taking on the FBI by
challenging a National
Security Letter that demanded
a user’s private data. The
Mountain View giant
petitioned the court to “set
aside legal process” on March
29. The petition was filed
under seal in San Francisco
with the same U.S. District
Court Judge Susan Illston who
recently ruled (pdf ) that NSLs
coming with a gag order are
unconstitutional.
Just a few weeks ago, on
behalf of a
telecommunications company,
the EFF had challenged the
constitutionality of NSLs that
come with a gag order . . .
97% of them are delivered with
that stipulation. On March 14,
Judge Illston ruled that the
NSL gag order requirements
“significantly infringe on
speech regarding controversial
government powers.” Such
NSLs "violate the First
Amendment and separation of
powers principles." She further
ordered the FBI to stop issuing
NSLs and to stop enforcing the
gag provision “in this or any
other case." Her decision was
stayed for 90 days in order to
give the Justice Department
an opportunity to appeal.
Last month, on March 5,
Google published a new
transparency report that
disclosed a summary range of
0 – 999 NSLs it had received
from the FBI for each year
from 2009 to 2012. Google
Legal Director Richard Salgado
wrote , "Our users trust Google
with a lot of very important
data, whether it’s emails,
photos, documents, posts or
videos. We work exceptionally
hard to keep that information
safe." He explained:
When conducting national
security investigations,
the U.S. Federal Bureau
of Investigation can issue
a National Security Letter
(NSL) to obtain
identifying information
about a subscriber from
telephone and Internet
companies. The FBI has
the authority to prohibit
companies from talking
about these requests. But
we’ve been trying to find
a way to provide more
information about the
NSLs we get—particularly
as people have voiced
concerns about the
increase in their use since
9/11.
It was a bold move and the
first time a company released
such data. By deciding to fight
an NSL, Google takes another
big first in the fight for users’
rights and a move against
government secrecy.
Bloomberg reported :
Google filed a petition to
set aside a “legal process”
pursuant “to 18 U.S.C.
Section 3511 (a) and (b),”
according to a March 29
filing in federal court in
San Francisco seeking a
court order to seal its
request. Petitions “filed
under Section 3511 of
Title 18 to set aside legal
process issued under
Section 2709 of Title 18
must be filed under seal
because Section 2709
prohibits disclosure of the
legal process,” Kevan
Fornasero, Google’s
lawyer, said in the filing.
Marc Rotenberg, president and
executive director EPIC, told
Bloomberg, “We are in this
interesting in-between moment
in which the government is
still able to enforce its
authority. I suspect that this
filing is an effort to push the
issue further.”
In the past, very few entities
have challenged NSLs. Calyx
Institute Founder Nick Merrill
did on behalf of a small ISP;
after fighting the Patriot Act
and winning, Merrill has
promised privacy when he
launches a surveillance-free
ISP. The librarians also
challenged an NSL as did an
“ unknown tech company ” last
year. In fact, of the 300,000
NSLs issued since 2000, “only
four or five recipients have
challenged the letters.” EFF
attorney Matt Zimmerman
said, “The people who are in
the best position to challenge
the practice are people like
Google.”
Neither the FBI, nor Google
have publicly commented yet
on the NSL fight.