Microsoft and Google don't often agree, but when it comes to getting government permission to publish totals on how many requests for data it sees from the Foreign Intelligence Surveillance Court (FISC), they are finding common ground.
"Disclosure of the aggregate data would not plausibly jeopardize the secrecy of any particular FISA or FAA directive that Microsoft may have received," Microsoft said in a court filing.
Google made a similar request last week. Federal authorities, with the approval of FISC, have the right to ask for use data from tech companies under the Foreign Intelligence Surveillance Act, or FISA. But the court has ruled that companies must keep silent about the requests.
Playing the First Amendment Card
Microsoft, Apple, Yahoo and Facebook all got permission from the FBI to reveal the number of requests for user data that all law enforcement agencies made between Dec. 1, 2012 and May 31, inclusive of criminal, inclusive of FISA and other requests. But the specific number and nature of FISA requests remains unknown.
Microsoft already tried its luck with the FBI and the Department of Justice but was denied permission to release the data. The company is now aggressively arguing that barring the publication of the data would constitute a content-based restriction on speech that fails to satisfy strict scrutiny, in violation of the First Amendment.
"The First Amendment does not permit the government to bar Microsoft from speaking about an issue of great importance to its customers, shareholders, and the public while, simultaneously, senior government officials are speaking publicly about the very same subject," Microsoft continued.
Doing Damage Control
"China is actually boycotting all Cisco hardware. These companies certainly don't want to be painted with the same broad brush so they can't sell in places like China," said Rob Enderle, principal analyst at the Enderle Group. "Microsoft wants to be able to point out that it is providing everything it can, and pare down this perception that everybody's data is at risk. Microsoft is trying to mitigate some of the damage that's been done."
Enderle believes Congress is on the side of the tech giants, preferring to disclose as much information as possible. He expects a major effort to limit government requests without due process. And he believes the FISC will ultimately rule to release the requested numbers because so much has already leaked.
"I don't see any more damage that would be done by talking about the information being disclosed. The government now is trying to contain the damage to U.S. corporations. The damage could be large and material. If nothing else that speaks to tax revenues," Enderle told us.
"I actually think it's likely that they are going to see these requests approved because it pares down the context of the volume of data being provided. The bigger issue is that the program was outed in the first place."