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Google and Microsoft File FISA Info Motions

By Aditi Mukherji, JD on July 02, 2013 | Last updated on March 21, 2019

Google and Microsoft have filed motions with the Foreign Intelligence Surveillance Court, seeking permission to reveal information about how many secret FISA requests they have received under the U.S. Foreign Intelligence Surveillance Act.

“To promote additional transparency concerning the Government’s lawful access to Microsoft’s customer data, Microsoft seeks to report aggregate information about FISA orders and FAA directives separately from all other local, state, and federal law enforcement demands,” states the company’s filing.

The move shows just how crucial a role in-house counsel can play in combating negative media reports.

As you know, FISA has been in the national spotlight ever since Edward Snowden leaked documents about the U.S. government's Prism surveillance program, which reportedly provides the National Security Agency with direct access to customer data stored by Microsoft, Facebook, Google and other big technology companies, reports PC World.

Currently, online companies can reveal how many FISA requests they receive only if they lump them together with all other requests from U.S. law enforcement agencies. That, of course, doesn't reveal and actually obscures the number of FISA requests those companies receive, so Microsoft, like Google before it, has asked for permission to separate the numbers. The FISA Amendments Act (FAA) is the law under which Prism's data collection is carried out.

So why are Google and Microsoft pushing for more transparency? As expected, it's largely for PR reasons. Both companies hope to correct the impression that they give the government direct access to customer data via their servers. It's an impression that has led to criticism of Microsoft, Google and other tech companies.

"Microsoft has sought -- and continues to seek -- to correct the misimpression, furthered by such inaccurate media reporting, that it provides the U.S. government with direct access to its servers and network infrastructure and, thereby, indiscriminately discloses Microsoft users' information to the government," Microsoft's attorneys wrote.

In its motion, Microsoft contends that the FBI or the Department of Justice is violating the First Amendment by not letting it disclose additional figures related to FISA requests in the aggregate.

"There is no statutory basis under FISA or the FAA for precluding Microsoft from disclosing the aggregate data," the company said.

Tech companies Facebook and Yahoo have also released numbers, but because they can't release FISA numbers specifically, they're still coming under fire for not distinguishing their data between criminal and security information requests.

On a side note, both the Microsoft and Google motions show that having security clearance comes in handy for in-house lawyers, reports Corporate Counsel. At Microsoft, John Frank has Department of Defense Top Secret clearance "for the purpose of facilitating Microsoft's interaction with the Government concerning classified matters."

Similarly, at Google, general counsel Kent Walker has FBI Secret clearance, while legal director Richard Paul Delgado has Top Secret clearance with the FBI.

Stay tuned to see how the tech giants' motions pan out.

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