Facebook still can't tell you if it's being silenced by the government

The social networking giant (and many others) don't have the option to say they have received no secret demands for user data -- only "some."

(Image: Facebook, via CNET)

Facebook's latest transparency report, released Monday, still doesn't shed any light on how many secret government data demands it receives.

The social networking giant received 14,274 regular requests from the US government, impacting 21,731 individual accounts. In four-out-of-five cases, some data was handed over. In most cases, a court-issued search warrant forced the handover of data.

But things get murky when you look at how many secret data demands the company received. What Facebook (or any other company) can disclose about these figures is bare-bones.

In the wake of the NSA surveillance scandal, tech companies demanded the right to disclose how many secret data demands they received from the government. The Justice Department eventually relented, allowing those figures to be reported in wide numerical ranges.

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Because the lowest range includes no demands (zero) and 999 demands, there's no option to flat-out say they have received no secret data demands.

Perhaps the most egregious of these demands (and the most troublesome for tech companies) are national security letters, which allow the FBI to collect of a person's information while barring that company from disclosing it to anyone else -- including the subject of the letter.

It not only makes it near-impossible for the subject to know and impractical for that person to challenge it but it also puts the company in a tricky spot. It can no longer claim (under the First Amendment right to free speech) it has never received a secret data demand from the government. That can put future business at risk.

Though, conjecture as it is, it's unlikely that Facebook, with about 1.4 billion users, hasn't received a single national security letter or secret data demand. (Facebook did not respond for comment when we reached out Monday.)

It's not clear why the Justice Department decided to include "no demands" with "some demands" with its reporting range rules. It's up to the government "to permit" companies to publish data demands in the first place, so it can set all the rules it wants. But according to Rachel Levinson-Waldman, counsel at the Liberty and National Security Program at New York University's Law School, "there can't be a gag on a non-existent request."

We put in a request for comment with the Justice Department, but based on how it's acting we expect it won't allow us to tell you if we received a comment or not.

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