Internet companies’ agreement with the government

On January 27, 2014, Google, Microsoft, Facebook, Yahoo! and LinkedIn stipulated and agreed to the dismissal without prejudice of their motions for disclosure of statistics on government surveillance requests. In exchange, the government filed a Notice with the FISC of its letter agreement (the “DAG letter”) providing the petitioners with two options for reporting aggregate statistics on government requests for customer information. Option One would allow companies to distinguish between (i) National Security Letters (“NSL’s”), (ii) FISA orders for contents of communications, and (iii) FISA orders for non-content information about communications. Under this option, however, companies would only be able to report the numbers of NSL’s and content and non-content FISA orders received and accounts affected in bands of 1000, starting with 0-999. By contrast, Option Two would allow companies to report aggregate numbers of NSL’s and FISA orders received and accounts affected in bands of 250 starting with 0-249, but would not allow them to distinguish between NSL’s and FISA orders or to differentiate between FISA orders for contents and non-content information. Both options would allow the publication of statistics for six month periods, but with delays of six months for publication of FISA data. No restrictions would be imposed on the publication of data about criminal process requests.

On February 3, 2014, Facebook, Google, Microsoft and Yahoo! each elected Option One. Google’s disclosure covered six-month periods from January 2009 – June 2013, Facebook’s six-month periods from July 2012- June 2013, and Microsoft’s six-month periods from July 2011 to June 2013. Yahoo! disclosed statistics for NSL’s and FISA requests for content and non-content for January 1-June 30, 2013 and for NSL’s from July 1-December 31, 2013, noting that the U.S. government had imposed a six month reporting delay on FISA statistics.

By contrast, LinkedIn elected Option Two, and reported on February 3, 2014 that it had received 0-249 aggregated national security-related disclosure requests affecting 0-249 user accounts between January 1, 2013 and June 30, 2013. Apple, which had not filed its own disclosure motion but had submitted an amicus brief in support of the other companies’ motions, also elected Option Two, and announced, on January 27, 2014, that it had received 0-249 aggregated national security-related disclosure requests affecting 0-249 user accounts between January 1, 2013 and June 30, 2013. Apple also reported the total number of U.S. law enforcement requests that it had received during that period.

Before these disclosures, Google had reached an agreement with the government that allowed it to publish yearly statistics from 2009-2012 on NSL’s received and users/accounts affected, broken down into bands of 1000.

Data on aggregate numbers of law enforcement requests from both the United States and countries throughout the world has been published by Google for six month periods starting in July 2009, by LinkedIn for six month periods starting in July 2011, by Microsoft (including Skype) starting in 2012, and by Apple, Facebook, and Yahoo! starting on January 1, 2013.

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