What's more, the DoJ asked the FISA court to reject the tech firms' case on the grounds that if those five companies won the disclosure permission they are seeking, others would doubtless follow, establishing a dangerous precedent that could undermine the intelligence activities that of necessity operate under a veil of secrecy.
"If these leading Internet companies are permitted to make these disclosures, the harm to national security would be compounded by the fact that other companies would surely seek to make similar disclosures," the DoJ argued. "As a result, our adversaries could soon be able to obtain a comprehensive picture of FISA-related surveillance activities."
Free Speech, First Ammendment at Risk?
But in the DoJ's argument, Google's Lieber sees a significant free-speech problem, namely that the government is overreaching in its application of the classified-information shield to bar companies from the disclosures they seek to make.
"In our case before the FISC, the government is effectively asking the court to place its imprimatur on the proposition that the government should be the arbiter of who gets to speak about the issuance and receipt of FISA demands. That's just a striking departure from important First Amendment principles," he said.
There is no separating the tech firms' campaign to disclose more information about the data they share with the government and their own business interests. Even before the revelations of former NSA contractor Edward Snowden, U.S. cloud providers had been struggling to convince foreign customers and governments that data stored with them is not subject to unfettered government inspection under Patriot Act authorities.
With the recent wave of disclosures, those concerns have only heightened, arming critics of the government's surveillance program in Congress, like Sen. Ron Wyden (D-Ore.), with a pro-business argument in favor of checks on bulk data collection and greater transparency.
"American companies that are believed to have been the subject of government surveillance orders are taking a major hit internationally and here at home," Wyden said this week at the Cato Institute. "This is a serious economic issue at a time when we all know our economy certainly is fragile."
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