DOJ: Tech firms would aid terrorists by revealing NSA requests

Tech companies would violate surveillance laws and help terrorists avoid detection if they reveal government requests for data, the Department of Justice told the Foreign Intelligence Surveillance Court this week.

In a motion filed Monday and made public Wednesday, the U.S. government responded to requests from Microsoft, Google, Yahoo, Facebook and LinkedIn to publish more information about the national security-related requests for user information they receive. 

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The companies argued that they should be able to release information about the number and types of requests they receive from the U.S. government, as well as the number of accounts affected by those requests, so long as they don’t disclose the specific targets.

The Justice Department said that's an “implausible reading” that “ignores the forest for the trees.”

“The companies’ narrow focus on individual targets ignores that the disclosures would risk revealing the Government’s collection capabilities as they presently exist and as they develop in the future,” DOJ wrote.

If terrorists have information about which companies are turning over information to the government, they would be able “to infer when the Government has acquired a collection capability on new services” and “which platforms and services are not subject to surveillance or are subject to only limited surveillance,” the response said.

Terrorists would use different services and platforms if they know which ones are being monitored, it said, calling information about the country’s surveillance capabilities “invaluable.”

“Releasing information that could induce adversaries to shift communications platforms in order to avoid surveillance would cause serious harm to the national security interests of the United States.”

By reporting only the aggregate number of surveillance requests would increase transparency without risking national security, the government said.

Because an aggregate number would include both requests for the information about electronic communications and requests for the content of electronic communications, adversaries won’t know whether the government has access to what is being said, DOJ argued.

The government defended its own “policy of appropriate transparency with respect to its intelligence activity,” which includes going “above and beyond what the law requires." The response pointed to a commitment made in August to "report annually the total number of orders issued nationwide and the total number of targets the orders affect.”

These reports “will provide significant public information about how often the Government uses its foreign intelligence investigative authorities” without providing “our adversaries with a roadmap to the existence or extent of Government surveillance of any particular provider or platform.”

Critics of the surveillance program have said that the government’s use of the word “targets” make it difficult to predict how informative those reports will be.