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June 27, 2013

Microsoft Pushes Top-Secret Court to Revoke Gag Order

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Google is not alone in asking the U.S.’s top-secret court to lift the gag order on data requests made by the National Security Agency, FBI and other federal agencies.

Microsoft is also pressing the Foreign Intelligence Surveillance Court (FISC) for permission to go public with the total numbers of requests the company receives that are okayed by the court as well as the number of user accounts affected by those requests.

Microsoft, in a nine-page court filing published on Scribd Wednesday, says the limitations placed upon it by the American government violate the First Amendment and “constitute a content-based restriction on speech that fails to satisfy strict scrutiny.”

The filing comes after The Washington Post and The Guardian —which received top-secret information courtesy of National Security Agency (NSA) whistleblower Edward Snowden — published stories indicating Microsoft, along with other top technology firms, willingly joined a PRISM, an extensive government surveillance plan.

The publications said the National Security Agency and the FBI are monitoring all of the biggest U.S. Internet companies — Microsoft, Yahoo, Google, Facebook, PalTalk, YouTube, Skype, AOL and Apple — some for as long as six years, with their full co-operation. It turns out, however, that The Post and The Guardian misinterpreted the documentation.

Although the government gave Microsoft and other technology companies the green light earlier this month to divulge the number of national security-related requests they receive — the information must be grouped together with other data requests.

Microsoft vice-president and deputy general counsel John Frank said in a blog post at the time that what the company was “permitted to publish continues to fall short of what is needed to help the community understand and debate these issues.”

The filing, Microsoft says, is a bid to “correct the misimpression … that it provides the United States government with direct access to its servers and network infrastructure.”

Microsoft also pointed out that the collection of information from electronic communication service providers is already a matter of public record and was, in fact, confirmed by comments from the director of National Intelligence in the press.

“In light of these statements and the extensive public reporting on this subject, a statutory prohibition against Microsoft’s disclosure of the aggregate data cannot be narrowly tailored to promote the government’s national security interests,” the filing reads. “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 FISC Motion

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