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Google Challenges NSA Gag Order, Cites 1st Amendment

By Brett Snider, Esq. | Last updated on

Playing PR catch up, Google challenged the gag order placed on them by the Foreign Intelligence Surveillance Court (FISC) so that they could show Google users how many national security requests Google receives.

In a request for declaratory judgment filed on Tuesday with the FISA court, Google sought permission to release the aggregate number of requests FISC makes of Google and how many users are affected, reports The Washington Post.

Google is not the only company seeking to mollify users with data request numbers, but their request may be the most specific to FISC yet.

Publishing Government Requests

Google may want to give its users more information than its competitors, like Facebook, who released general information about how many data requests it receives from all law enforcement bodies about their users, reports The New York Times.

That isn't particularly germane to the recent worries about the PRISM project, as counsel for Facebook explained that these requests included local police and sheriff requests that are not concerned with investigating terrorism, reports CNN.

Always wanting to outdo its Internet giant siblings, Google is going for the brass ring, asking specifically to release the numbers of requests generated from FISC, the one responsible for O.K.'ing the PRISM probes.

Google's First Amendment Claim

In its petition to FISC, the search engine/email/everything purveyor claims that it should be able to respond to the claims of the Guardian that it was complicit in providing information by releasing some basic numbers on the number of FISC requests they have received.

To buttress these claims, Google offers...nada.

It's very odd, assuming that Google has access to some decent legal minds, and yet their request for declaratory relief offers no case law to support their First Amendment claim to free speech. The only argument with bite is that the data Google is asking for is unclassified, but that doesn't seem to clear the waters much.

Corporate Free Speech

Maybe part of the reason that Google's lawyers chose not to cite any precedent for corporate First Amendment rights is that the field is mostly barren.

Other than the Supreme Court's surprising decision in Citizens United v. FEC, the courts have been squeamish to grant companies anything close to the free speech rights of a natural person. Google's claim may not have to do with any specific constitutional right to free speech, but rather the non-legal colloquial use of "First Amendment," meaning that the corporation wants to say things to clear its name, but might be punished for doing so.

Unfortunately for Google, appeals to the "unfair" nature of the transparency situation are not terribly compelling legal arguments for FISC to relax the gag order.

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