Microsoft, Google, Facebook and Yahoo! file motions in FISA Court

Today Microsoft, Google, Yahoo! and Facebook all filed motions with the FISC (U.S. Foreign Intelligence Surveillance Court) to allow them to release certain aggregate data about the numbers of requests they receive from the government.

Microsoft and Google filed such motions many weeks ago; the proceedings were delayed at the government's request until just recently as the parties negotiated. The negotiations have failed and the matter will be heard in the FISC.

Today Microsoft and Google filed amended motions with more specifics on what they wished to disclose. They were joined by Yahoo! and Facebook which filed similar motions with the FISC.

The motions are all worded similarly, arguing that the government has no reasonable claim that release of the data would compromise any legitimate governmental interest, and that in any case the prohibition is a violation of the companies' First Amendment free speech rights.

Facebook asks to be able to release:

1. The total number of FISA court orders it has received during a 6 month period, if any, under specific FISA authorities, such as:
   1. Physical Search Orders
   2. Business Record Orders
   3. Wiretap and Pen Register/Trap and Trace orders
2. The total number of user accounts specified in such FISA orders
3. The total number of Directives it has received during the period  under 18 U.S.C. § 1881a, if any
4. The total number of user accounts specified under such directives.
5. The number of requests that called for content of communications versus those that called for transaction or subscriber information.

Yahoo!'s and Google's motions are identical as to what they request and are even more specific:

1. FISA orders based on probable cause (Titles I and III of FISA, and sections 703 and 704);
2. Section 702 of FISA;
3. FISA Section 12 Business Records (Title V of FISA); and
4. FISA Pen Register/Trap and Trace (Title IY of FISA).

Microsoft's is less specific, asking that the court allow them to:

… disclose, for each provision of FISA and/ or the FAA, pursuant to which Microsoft may receive process, the following aggregate figures: (1) the number of orders and/ or directives (if any) received that require the production of only non-content data, and the number of accounts affected by any such orders and/or directives; and (2) the total number of orders and/ or directives (if any) received that require the production of content and non-content data, and the number of accounts affected by any such orders and/ or directives (together, the "Aggregate Data").

All of the companies state that inaccurate reports in the press are damaging their reputations and that greater disclosure would help them to defend themselves.