In fight over gag orders, US tech industry files complaint over FBI legal tactics

Lawyers for Google(s goog), Microsoft(s msft) and other tech firms that are squaring off with the FBI before America’s spy court say they’re stuck in an unfair fight: the government, which is opposing a petition to disclose surveillance numbers, won’t even show them some of the legal arguments it is using to uphold current gag orders.

In response, the tech companies are asking the Foreign Intelligence Surveillance Court to strike the blacked-out portions of the government’s filing. The request, filed this week, notes that the “heavily redacted” submissions mean the court could decide the First Amendment case on the basis of arguments the tech companies will not even get a chance to see.

The submissions in question were filed on September 30, and represent the government’s response to claims by Google, Microsoft, Facebook(s fb), Yahoo(s yhoo) and LinkedIn(s lnkd) that the companies have a free speech right to disclose the number of requests they receive under the Patriot Act. Here is a screenshot that shows how pages of the government’s legal filing appear:

screenshot of censored FISC court filing

The redactions are remarkable given that the case is not about specific surveillance operations or tactics but, instead, is about basic Constitutional issues of free speech. The tech companies claim they have proposed various measures — such as only showing the government brief to lawyers with Top Secret clearance — to address the FBI’s concerns over national security, but that the FBI still refused to show them the legal arguments.

As a result, the only people who can see the filings are the judges of the spy court, whose operations are likewise confidential. The situation appears to validate an explosive claim by the New York Times in July that the court “has quietly become almost a parallel Supreme Court.”

The tech companies claim that the secret filings are not only unconstitutional, but that they further impede the tech industry’s efforts to refute incorrect media reports about their role in the ongoing scandal over a surveillance program known as PRISM.

Here is the new legal brief, which is signed by counsel from all five companies. Last week, Apple filed a brief in support of its tech industry rivals.

FISA court motion to strike.pdf

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