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Tech Giants Challenge Uncle Sam’s Redactions

(CN) - The government improperly redacted its defense of a gag order that prevents tech companies from discussing government surveillance requests, Google, Microsoft and others told the Foreign Intelligence Surveillance Court.

Google, Microsoft, Yahoo!, Facebook and LinkedIn have jointly petitioned the court, abbreviated as 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 making demands for records from the major tech companies.

The program's existence was revealed by documents leaked by former NSA contractor Edward Snowden.

Prism is operated under supervision 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 limits government attorneys as the only ones permitted to appear before the court, and nongovernment parties are not permitted to see unredacted versions of government briefs.

Assistant U.S. attorneys general filed a response brief to the demands by the tech companies for declaratory judgment on Sept. 30.

Text is blacked out on every sheet of the 33-page brief, which cites national security as a basis for the FBI classification of the data at issue.

"The companies assert that the secrecy requirements apply only to particular surveillance targets," the brief states. "But that implausible reading ignores the forest for the trees. It would permit damaging disclosures that would reveal sources and methods of surveillance potentially nationwide. The secrecy provisions in the orders flow from statutory requirements that, according to their plain language, protect such sources and methods, not just particular collection efforts. Indeed, limiting the secrecy protections only to information revealing a particular surveillance target would authorize a wide range of other damaging disclosures, from the nature of surveillance targets to their general locations, among others."

On Tuesday, the tech companies complained that the redacted portions of the brief makes 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 providers claim that they are already privy to FISC orders to which they have been subject, as well as the names and targets of those orders.

"At issue in this motion is only the secondary question whether the providers may be told the reasons why the government seeks to keep that information a secret," their joint brief states. "The government has made no effort to explain how sharing those reasons with the providers or their counsel would endanger national security."

The tech companies urged the FISC to either grant their counsel interim clearances that would let them review some or all of the unredacted briefs, or to appoint a neutral third-party who would review the government's submission, and make arguments on the providers' behalf.

"Those alternatives would not fully satisfy all of the providers' First Amendment and due process interests in understanding the factual basis of the government's position, but some of the alternatives could help to address at least some of the providers' interests," the brief states.

The government has allegedly refused to entertain any of these possibilities so far, and insisted that the providers must defend their First Amendment rights with the information they have.

On Wednesday, FISC Judge Reggie Walton entered a partial stay that says the tech companies need not answer the government's response until they have a ruling on their motion to strike.

The government's response to the strike motion is due on Dec. 6, and the tech companies must reply to that by the end of the day on Dec. 20.

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