filed in E-Business on Jun.27, 2013
Microsoft and Google don’t often agree, but when it comes to getting government permission to publish totals on how many requests for data it sees from the Foreign Intelligence Surveillance Court (FISC), they are finding common ground.
“Disclosure of the aggregate data would not plausibly jeopardize the secrecy of any particular FISA or FAA directive that Microsoft may have received,” Microsoft said in a court filing.
Google made a similar request last week. Federal authorities, with the approval of FISC, have the right to ask for use data from tech companies under the Foreign Intelligence Surveillance Act, or FISA. But the court has ruled that companies must keep silent about the requests.
Playing the First Amendment Card
Microsoft, Apple, Yahoo and Facebook all got permission from the FBI to reveal the number of requests for user data that all law enforcement agencies made between Dec. 1, 2012 and May 31, inclusive of criminal, inclusive of FISA and other requests. But the specific number and nature of FISA requests remains unknown.
Microsoft already tried its luck with the FBI and the Department of Justice but was denied permission to release the data. The company is now aggressively arguing that barring the publication of the data would constitute a content-based restriction on speech that fails to satisfy strict scrutiny, in violation of the First Amendment.
“The First Amendment does not permit the government to bar Microsoft from speaking about an issue of great importance to its customers, shareholders, and the public while, simultaneously, senior government officials are speaking publicly about the very same subject,” Microsoft continued.
Doing Damage Control
“China is actually boycotting all Cisco hardware. These companies certainly don’t want to be painted with the same broad brush so they can’t sell in places like China,” said Rob Enderle, principal analyst at the Enderle Group. “Microsoft wants to…