Silicon Valley fights to lift 'gag orders'

Tech companies and privacy advocates are ratcheting up the fight against federal "gag orders” that prevent companies from talking about secret spy programs.

Silicon Valley’s biggest names are demanding that they be allowed to tell their customers more about the requests they receive from the government for information, arguing the step is needed to restore trust in their products.

“I think we’ll definitely continue to see increased vociferousness from the tech companies,” said Andrew Crocker, a legal fellow with the Electronic Frontier Foundation (EFF).

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“I think it just calls attention to the importance on this issue both for individual users’ privacy and free speech rights and also the companies and their increasing interest in being transparent with their customers.”

The FBI has used a tool called national security letters for decades, but the agency came to rely on them more after the implementation of the Patriot Act. In fiscal year 2012 alone, the bureau issued 21,000 of the letters, according to President Obama’s intelligence review group.

The letters allow agents to obtain records about people’s phone, Internet and financial activity without a court order. The vast majority of the letters also place a “gag order” on the companies handing over information, which prevents them from disclosing the details of what they had to give to the federal government.

Federal officials say the letters are crucial tools to connect the dots early in an investigation. Terrorists or spies could be tipped off if information about the searches is made public, officials say.

That argument hasn’t won over tech companies, who are trying to repair the damage to their brands from the revelations about National Security Agency (NSA) surveillance.

This week, Twitter announced that it is suing the Obama administration for its inability to talk about the letters and similar orders from the secretive Foreign Intelligence Surveillance Act (FISA) Court.

A day after the lawsuit was filed, the EFF argued before a three judge panel of the Ninth Circuit Court of Appeals on behalf of two unnamed companies protesting their inability to disclose the fact that they have received national security letters.

Major tech firms including Facebook, Google, Microsoft, and Yahoo have sided with the unnamed companies in a friend-of-the-court brief, as have media organizations including The New York Times and FOX News.

Critics say the “gag orders” are a violation of the First Amendment.

At least one judge on the Ninth Circuit Court of Appeals seemed inclined to agree that the orders need to be more narrowly tailored to pass constitutional muster. 

Judge N. Randy Smith said the burden to remove the gag order once it is no longer relevant should be placed on the government, rather that the company that received it.

"It seems to me that if I really want to make this as narrow as possible that we ought to have something in here about the government's responsibility to end the order," Smith said. 

"It would seem to me it would make it narrower and might make the statute more constitutional,” he added.

The Justice Department has mounted a vigorous defense of the letters.

"If we don't have that tool, the courts would have greatly hamstrung our ability to protect national security," government attorney Douglas Letter told the court Wednesday.

For tech companies, the appearance that they are standing with their customers against the government is critical.

Edward Snowden’s leaks about the NSA have created a global backlash against American tech companies that is eroding their profits. The U.S. cloud computing industry is estimated to lose up to $180 billion in profits over the next two years, as people around the globe turn to foreign competitors.  

“If we want to retain a position of technology leadership for the long term for this country, it’s an imperative that we sustain people’s trust,” Microsoft general counsel Brad Smith said during a panel this week with Sen. Ron WydenRonald (Ron) Lee WydenBiden pushes back at Democrats on taxes Want a clean energy future? Look to the tax code Democrats brace for toughest stretch yet with Biden agenda MORE (D-Ore.) in Palo Alto, Calif.

“So when trust is shattered it needs to be rebuilt,” he added. “One step is transparency.”

The Obama administration has tried to accommodate critics’ concerns about the FISA orders and national security letters.

In January, the Justice Department announced a major settlement with a handful of tech companies to let them disclose how many orders they have received in broad ranges, such as between 0 and 999.

Critics said that was a good first step, but are demanding more — and could get a helping hand from Congress.

In the Senate, one provision of a major NSA reform bill would give tech companies additional options to report national security letters and FISA orders. It would also require the FBI to review whether the nondisclosure orders are still relevant each year.

The future of that bill remains uncertain, however, given the lawmakers have only a brief window left for legislative activity after the midterm elections.

Even if legislation stalls on Capitol Hill, civil libertarians are hopeful that they will triumph in the courts.

“It might be that the Twitter suit and the [national security letter] suit are a sign of things to come,” said Alex Abdo, a staff attorney with the American Civil Liberties Union.

“Ideally Congress would head off the need for this sort of litigation, but in the absence of legislation the courts will hopefully be willing to correct the problem themselves.”