Motions before the FISC
Google’s and Microsoft’s Initial Motions
On June 18 and June 19, 2013, Google and Microsoft respectively sought declaratory judgments from the FISC that in accord with the First Amendment, the publication of aggregate statistics on the numbers of FISA requests they received during calendar periods and the users or accounts involved in such requests would not violate either FISA or the FISC Rules of Procedure. Motions for the Publication of Statistics on FISA Requests: In re Motion for Declaratory Judgment of Google Inc.’s First Amendment Right to Publish Aggregate Information about FISA Orders, Docket No. Misc. 13-03 (FISC filed June 18, 2013); In re Motion to Disclose Aggregate Data in Regard to FISA Orders, Docket No. Misc. 13-04 (FISC filed June 19, 2013).
An amicus brief in support of Google’s and Microsoft’s motions was submitted to the FISC by the First Amendment Coalition, ACLU, EFF, Center for Democrary and Technology, and TechFreedom.
Google’s and Microsoft’s Amended Motions
After the government asked for six extensions of its time to reply, Microsoft filed an amended declaratory judgment motion on September 9, 2013, seeking permission to publish aggregate statistics differentiating between orders and directives it received from the FISC for the production of (i) both content and non-content data and (ii) only non-content data.
Also on September 9, Google filed an amended motion seeking to break down its published statistics on the numbers of compulsory requests it received and numbers of users or accounts affected into the categories of (i) FISA orders based on probable cause (Titles I and III of FISA, and sections 703 and 704), (ii) orders for warrantless surveillance of the contents of communications under Section 702 of FISA, (iii) FISA Business Records (Title V of FISA), (iv) FISA Pen Register/Trap and Trace (Title V of FISA), and (v) National Security Letters (“NSL”s) issued under 12 U.S.C. Sec. 3414(a)(5), 15 U.S.C. Sections 1681u(a) and (b) and 1681v, and 18 U.S.C. Sec. 2709. By contrast to all the other Internet companies with the exception of LinkedIn (see below), Google requested public oral argument, citing the need “to ensure that this issue of public concern is debated and decided with the utmost transparency.”
Facebook’s and Yahoo!’s Motions
On September 9, 2013, Yahoo! moved before the FISC for a declaratory judgment that it had a First Amendment right to publish statistics on the numbers of orders it received and accounts affected, broken down into (i) FISA orders based on probable cause (Titles I and III of FISA, and sections 703 and 704), (ii) orders for warrantless surveillance of the contents of communications under Section 702 of FISA, (iii) FISA Section 12 Business Records (Title V of FISA), and (iv) FISA Pen Register/Trap and Trace (Title V of FISA). In re Motion for Declaratory Judgment to Disclose Aggregate Data regarding FISA Orders and Directives, Docket No. Misc. 13-05.
On the same date, Facebook brought a motion before the FISC for a declaratory judgment that the First Amendment entitled it to publish statistics on the total number of FISA orders received and user accounts specified in the orders, broken down into numbers of requests calling for contents of communications and numbers calling only for transaction or subscriber information. In re Motion for Declaratory Judgment to Disclose Aggregate Data Regarding FISA Orders and Directives, Docket No. Misc. 13-06.
On September 17, 2013, LinkedIn brought a motion before the FISC for a declaratory judgment that the First Amendment entitled it to publish statistics on the total numbers of compulsory requests it received from the United States government and the total numbers of LinkedIn members or accounts involved in such requests. Similarly to Google, LinkedIn requested public oral argument, stating that “[g]iven that the issues of transparency raised by this Motion are the subject of intense concern by and vigorous debate among the American people and their elected representatives, it is appropriate that those issues be adjudicated as transparently as possible.” In re Motion for Declaratory Judgment that LinkedIn Corporation May Report Aggregate Data Regarding FISA Orders, Docket No. Misc. 13-07.
Dropbox’s and Apple’s Amicus Briefs
Dropbox filed an amicus brief in support of Google’s, Microsoft’s, Yahoo!’s, and Facebook’s motions on September 23, 2013. On November 5, 2013, Apple filed an amicus brief in support of the motions of those parties and LinkedIn.
The Government’s Response
In accord with the Scheduling Order issued by Judge Claire V. Eagan of the FISC on September 18, 2013, the government filed a single response to Microsoft’s and Google’s amended motions and Facebook’s,Yahoo!’s and LinkedIn’s motions on September 30. The Response stated that “[t]he United States Government firmly supports a policy of appropriate transparency with respect to its intelligence activities,” but nonetheless opposed all the motions on the ground that revealing company-by-company statistics on FISA requests “would cause serious harm to national security.” Therefore, according to the government, the FBI had properly classified the data the companies sought to disclose, and the companies had no First Amendment right to disclose it. The government further argued that the FISC lacked jurisdiction to issue the declaratory relief the companies sought, as the data was protected by sources of law besides FISA, which were outside the FISC’s purview.
The government’s response was accompanied by a Declaration of Andrew McCabe, the Acting Executive Assistant Director of the National Security Branch of the FBI.
The Plaintiffs’ Motion to Strike
On November 12, 2013, Microsoft, Google, Facebook’s,Yahoo! and LinkedIn moved to strike the redacted portions of the government response and accompanying declaration on grounds that the heavily redacted versions with which they had been provided made it impossible for them to understand the basis for the government’s response. The government’s opposition was filed on December 6, and the plaintiffs’ reply was filed on December 20.