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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

By , Network World
July 17, 2013 09:59 AM ET

Network World - 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.

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