Government Defends Blacked-Out Brief in FISC

(CN) - Heavy redaction of a government brief defending a gag order that prevents tech companies from discussing surveillance requests does not obscure any legal arguments, the United States told the Foreign Intelligence Surveillance Court.

Google, Microsoft, Yahoo!, Facebook and LinkedIn have jointly petitioned the Foreign Intelligence Surveillance Court, or FISC, to lift a gag order forbidding the tech companies from disclosing the number of surveillance requests they receive from the National Security Agency.

Under a clandestine program known as Prism, the NSA collects millions of Internet communications by demanding records from the major tech companies.

The Prism program is supervised by the FISC, which operates in secrecy and only releases certain, normally heavily redacted, records to the public.

The classified nature of the proceedings usually means that only government attorneys may appear before the court, and nongovernment parties are not permitted to see unredacted versions of government briefs.

Last month, the tech companies claimed the government's response brief was so heavily redacted that it made it impossible for them to see, let alone defend themselves against, the government's legal arguments.

"Allowing the government to file an ex parte brief in this case will cripple the providers' ability to reply to the government's arguments and is likely to result in a disposition of the providers' First Amendment claims based on information that the providers will never see," they said in a motion to strike the classified redacted information.

Text is blacked out on every sheet of the 33-page brief, with some pages redacted in their entirety.

The government filed an opposition Friday, claiming that "none of the legal arguments in the government's public brief have been redacted. The brief was carefully reviewed to provide as much information as possible to the companies and to the public, consistent with national security. The redacted information supports the government's decision to classify the data the companies seek to disclose."

However, of its own accord, the government attached a copy of its response brief that reveals footnote four on page nine, which had previously been redacted.

The unveiled footnote states, "The companies' focus on 'the names and identifiers of targets' mirrors the narrow focus of their underlying merits motions. While it is important to protect the secrecy of the identity of foreign intelligence targets, that is not the only type of national security information that is protected from disclosure."

Many of the redactions in the response brief do not relate to particular surveillance targets but "rather explains how an adversary could use the companies' proposed disclosures to determine the capabilities and limits of the government's surveillance," the government claimed.

Since the government has explained the ground for its classification decision, the companies can only challenge whether the redactions are narrowly tailored enough to protect the classified information.

"The redactions in the government's brief do not materially affect any of the arguments the companies can offer in favor of disclosing the classified data," the opposition brief concludes.

The government says its compliance with the rules of procedure "raises no First Amendment issues."

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