[Infowarrior] - Open Secret About Google’s Surveillance Case No Longer Secret

[Richard Forno]

Open Secret About Google’s Surveillance Case No Longer Secret
By Jennifer Valentino-DeVries and Danny Yadron

http://blogs.wsj.com/digits/2013/08/26/open-secret-about-googles-surveillance-case-no-longer-secret/

The Justice Department recently won a court battle to keep an Internet company from talking about federal demands for user data, arguing that even disclosing the company’s name would damage national security.

But then, after months of arguments, the department appears to have been foiled by its own redaction process, which left the name “Google” on one page that was posted Friday in the U.S. District Court for the Southern District of New York.

The case and GoogleGOOG +0.23%’s role in it underscore a tension between some Silicon Valley companies and the government over national security surveillance and the secrecy surrounding it.

Google has been pushing back against data-gathering tools called national security letters in two federal courts since this spring.

Such letters, known as NSLs, allow the Federal Bureau of Investigation to demand account information and other data, but not the content of calls and emails. They typically come with a strict gag order, and companies cannot even acknowledge they receive them.

After a judge in California ruled the law was a violation of the First Amendment right to free speech in March, Google challenged several of the letters it had received and asked to be freed from the gag orders.

The decisions have consistently sided with the government and ordered Google to comply and keep quiet.

But after news broke that Google was part of a program called Prism, which allows the National Security Agency to collect data on Internet users from U.S. technology companies, the company asked one of the judges, in New York, to reconsider.

Google and other companies involved in the NSA programs have said the secrecy surrounding government data-gathering leaves them unable to tell their customers what they really do with the data and puts their business at a disadvantage.

“[Redacted] has a First Amendment right to communicate transparently with its users and the public regarding its receipt of the NSL,” an attorney for the initially unnamed company wrote in a court filing, dated Aug. 16. “In light of broadly available misinformation about [redacted] receipt of and compliance with national security process and the concerns and questions of its users… [redacted] seeks to advance the public debate by taking reasonable, limited steps to increase transparency regarding its practices.”

Many references to an unnamed company are redacted in the 10-page document. But a sentence before a large blocked-out section on page 8 says that, after the Guardian and Washington Post newspapers reported Prism’s existence, “the public’s already healthy interest in Google’s receipt of, and response to, national security legal process skyrocketed.”

Whoops.

The FBI didn’t respond to requests for comment. The court didn’t respond to a request for comment left on Sunday.

A Google spokesman declined to comment on if Google is indeed involved in the case, further highlighting how the government’s gag order remains in effect.

The Google spokesman did however stand up for the unnamed technology company. “We fight for our users and have petitioned the U.S. government for more openness about their requests for user information, so we find the government’s position in this case disappointing,” the spokesman  said.

The attorney listed on the filing, Todd Hinnen of Seattle firm Perkins Coie, represents Google in litigation, according to his online biography. Reached by phone Friday evening, Hinnen said he could “neither confirm nor deny” the veracity of the document. He declined to comment on his involvement with Google.

The company’s legal push against the records requests has been previously reported, after a filing error in California resulted in the release of a one-page document that included Google’s name and a reference to the law governing national security letters. But the government officially has never acknowledged Google’s involvement.

In a June 5 letter to the court, the government argues that divulging the company’s name “would alert current and potential adversaries and targets,” possibly leading them to “change tactics and stop using the provider’s services altogether.”

The government also argues that, if the court were to allow the company to acknowledge receipt of the national security letters, it would set a bad precedent and lead to many other companies being allowed to discuss NSLs.

Google, for its part, says in its memo that discussion of NSLs should be part of “a debate the President has encouraged” since the disclosure of Prism and other programs revealed by former NSA contractor Edward Snowden.

“Maintaining the redaction now serves only to protect a secret that everyone already knows,” the company says in the document.
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