Microsoft to feds: Let us explain our dealings with the NSA

Citing Constitutional guarantees, Microsoft asks help lifting the ban on talking about NSA, FBI requests for customer information

Frustrated by laws that prevent it from talking about how and when it turns over customer information to the federal government Microsoft is asking Attorney General Eric Holder to clear the way to publicly share more details about that process.

The company has been trying for more than a month to get permission to explain how the turnover of that information works because documents about the process have “now been misinterpreted in news stories around the world,” to the detriment of Microsoft, the company’s General Counsel Brad Smith says today in a letter to Holder.

BACKGROUND: Microsoft asks to disclose FISA requests to set the record straight 

A LONGER VIEW: FISA court asks government to declassify secret order in Yahoo case 

Microsoft says that the practice is legal, but the company isn’t allowed to explain the details fully. Microsoft and other companies named in news stories – including Google, Facebook and Yahoo – have asked to say more but those requests have been denied. A Microsoft appeal to the Foreign Intelligence Surveillance Act (FISA) court that issues orders for release of the customer information hasn’t been answered yet, Smith says.

Online firms can reveal the number of FISA requests they get only if they are rolled up in an aggregate number of all requests from all law enforcement agencies. That masks the extent of FISA-approved gathering.

The issue is a matter of free speech, Smith says, which interpretations of the Constitution say should not be infringed unless it is to protect a narrow, compelling government interest. Since documents about secret government programs to glean customer data from Microsoft and other service providers have already been leaked to the public, silencing Microsoft no longer offers any practical advantage.

“It’s time to face some obvious facts,” Smith writes. “Numerous documents are now in the public domain. As a result, there is no longer a compelling Government interest in stopping those of us with knowledge from sharing more information, especially when this information is likely to help allay public concerns.”

Separately in a blog post, Smith says, “The United States has been a role model by guaranteeing a Constitutional right to free speech. We want to exercise that right. With U.S. Government lawyers stopping us from sharing more information with the public, we need the Attorney General to uphold the Constitution.”

His complaints are about how Microsoft responds to government demands for customer data and how that procedure was portrayed in news stories that describe leaked NSA documents about the programs.

Yahoo has sought release of FISA Court documents that show how it fought releasing customer data but lost in a 2008 case. The court ruled this week that the government should review whether the documents should be declassified.

Particularly worrisome to Microsoft and other service providers listed in an NSA PowerPoint presentation about its Prism program for gathering customer data is that NSA access to service provider servers is described as direct. The service providers have said the description is inaccurate but haven’t been allowed to spell out exactly how the information is gathered and handed over.

Here is Smith’s letter:

July 16, 2013

The Honorable Eric Holder

Attorney General

U.S. Department of Justice

950 Pennsylvania Avenue, NW

Washington, D.C. 20530-0001

Dear Attorney General Holder:

I’m writing to ask you to get involved personally in assessing the Constitutional issues raised by Microsoft and other companies that have repeatedly asked to share publicly more complete information about how we handle national security requests for customer information. In my opinion, these issues are languishing amidst discussions among multiple parts of the Government, the Constitution itself is suffering, and it will take the personal involvement of you or the President to set things right.

Since the initial leak of NSA documents, Microsoft has engaged constructively with the Department of Justice, the FBI, and other members of the Intelligence Community on the ground rules governing our ability to address these issues and the leaked documents publicly. We have appreciated the good faith in which the Government has dealt with us during this challenging period. But we’re not making adequate progress. When the Department and FBI denied our requests to share more information, we went to the Foreign Intelligence Surveillance Court (FISC) on June 19 to seek relief. Almost a month later, the Government is still considering its response to our motion.

Last week we requested official permission to publicly explain practices that are the subject of newly-leaked documents that refer to Microsoft and have now been misinterpreted in news stories around the world. This request was rejected. While we understand that various government agencies are trying to reach a decision on these issues, this has been the response for weeks. In the meantime, the practical result of this indecision is continued refusals to allow us to share more information with the public.

This opposition and these delays are serving poorly the public, the Government itself, and most importantly, the Constitutional principles that we all put first and foremost.

As I know you appreciate, the Constitution guarantees the fundamental freedom to engage in free expression unless silence is required by a narrowly tailored, compelling Government interest. It’s time to face some obvious facts.

Numerous documents are now in the public domain. As a result, there is no longer a compelling Government interest in stopping those of us with knowledge from sharing more information, especially when this information is likely to help allay public concerns.

I feel very fortunate that we have both an Attorney General and a President with such longstanding knowledge of and appreciation for our Constitution. Put simply, we need you to step in to ensure that common sense and our Constitutional safeguards prevail.

Thank you for your consideration.

Sincerely,

Bradford L. Smith

General Counsel and Executive Vice President

Microsoft Corporation

Tim Greene covers Microsoft and unified communications for Network World and writes the Mostly Microsoft blog. Reach him at tgreene@nww.com and follow him on Twitter@Tim_Greene.

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