US DOJ opposes company requests to publish surveillance statistics

Allowing companies to report surveillance requests would drive suspects to other services, officials say

The U.S. Department of Justice has opposed requests by Facebook, Google, Microsoft and other companies to publish the number of surveillance requests they receive from the U.S. National Security Agency and other agencies.

Requests from five Internet companies, also including Yahoo and LinkedIn, would hurt the NSA's ability to conduct surveillance on "particular" Internet communications, the DOJ said in a brief filed with the U.S. Foreign Intelligence Surveillance Court on Monday. If Internet communications providers publish statistics about surveillance requests, that information could drive terrorists to other providers, the DOJ said.

"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," DOJ lawyers wrote in the brief.

The U.S. intelligence community would not object to a release of the total number of surveillance requests made per year, not divided up by company, said James Clapper, U.S. director of national intelligence, speaking at a Senate Judiciary Committee hearing Wednesday. But identifying the surveillance requests by company would allow terrorists to go "shopping around for providers that aren't covered" by U.S. surveillance efforts, he said.

Clapper said President Barack Obama's administration would be opposed to legislation from Senator Al Franken, a Minnesota Democrat, that would allow companies to report surveillance requests every six months. Several tech companies and civil liberties groups voiced support for Franken's Surveillance Transparency Act in a letter to lawmakers Tuesday.

Internet and telecom companies have been under pressure to reveal details about how they work with the NSA following revelations in June by former NSA contractor Edward Snowden about massive data-collection programs at the agency. The NSA says the data collection efforts, which include monitoring U.S. telephone and Internet communications, are necessary to counter the threat of terrorism.

Google, Microsoft and other companies have filed petitions at the surveillance court in an effort to publish more information about the surveillance requests they receive. Several Internet companies have voiced concern that recent press revelations about NSA surveillance programs have eroded consumer trust in their services.

The DOJ, in its brief, also argued the surveillance court doesn't have the jurisdiction to "broadly grant declaratory relief" requested by the Internet companies. The court has a limited and "specialized" jurisdiction, the DOJ argued.

The Center for Democracy and Technology, a digital rights group pushing for more NSA transparency, said it was disappointed in the DOJ's opposition to the company requests.

"We are disappointed but unsurprised to see the government opposing the Internet industry's plea that it be allowed to be more transparent with its users about the extent of the NSA's internet surveillance," Kevin Bankston, a senior counsel at CDT, said in an email. "The privacy and civil liberties community will continue to assist these companies as they press for their rights and the rights of their customers, both in the FISA court and in Congress."

Microsoft will continue to push for transparency, a spokeswoman for the company said. Transparency "is critical to understanding the facts and having an informed debate about the right balance between personal privacy and national security," she said in an email.

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's email address is grant_gross@idg.com.

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