Google challenges U.S. gag order, citing First Amendment

http://www.washingtonpost.com/business/technology/google-challenges-us-gag-order-citing-first-amendment/2013/06/18/96835c72-d832-11e2-a9f2-42ee3912ae0e_story.html

by stfu • 13 years ago

414 176 13 years ago

washingtonpost.com

bifrost2• 13 years ago

This is sortof hillarious, Google fighting for this when they mine ALL of your data...

betterunix• 13 years ago

They are not fighting the mining by the government, only the secrecy. They are fighting for the right to tell you what is happening, just like they tell you what they are doing with your data.

The cynic in me thinks that Google is deliberately fighting a losing battle, so that later on they can say, "Hey, it's not our fault -- we want to tell you what is happening, they won't let us!"

selter012• 13 years ago

I don't think the outcome of the battle matters at all in this case. Google is still putting up a fight. Their track record shows that they do at least tell us what is happening, so "it's not our fault, we want to tell you, they won't let us" is consistent with their actions, AFAIK.

embolism4• 13 years ago

Google doesn't tell us what they are doing with our data.

jfoster2• 13 years ago

The cynic in me notes that the companies were spurred into action by the leak. Google has always showed some interest in providing transparency about government requests, but even they were not taking the US government to court over it.

The companies involved are taking these actions because the leak may have undermined consumer trust (eg. small drops in activity) in them. Perhaps even wrongly, if PRISM isn't as widespread as the initial leak suggested.

nostromo• 13 years ago

The government has a monopoly on violence. They can kill you, send you to gitmo, take all of your money and possessions, etc.

Google by comparison can turn off your gmail account.

_delirium• 13 years ago

Depending on what precisely they do with the data, they could do things quite a bit more damaging than turning off your Gmail account, though it certainly wouldn't rise to the level of sending you to gitmo. The worst would probably be some kind of financial and/or career blackballing, if they sold data-mined information about you to credit agencies, lenders, private investigators, and/or prospective employers, and something particularly damaging were contained in it.

I believe their privacy policy currently says they won't do that, and it's especially clear that they won't do anything except target ads using information mined out of your email. But I don't think there would be anything illegal about it, as long as they didn't do something like outright blackmail (offer to let you pay to expunge negative information or something).

mpyne5• 13 years ago

Well if you're willing to talk about illegal things the government could do to you it makes sense to talk about the illegal things Google could do to you; i.e., anything.

dragonwriter3• 13 years ago

The government has a monopoly on violence.

No, it doesn't.

People who aren't the government, and who lack its sanction in doing so, apply violence every day.

bifrost2• 13 years ago

Google by comparison can turn off your gmail account.

I take it you've never lost an important email account, it can be very isolating. For some people that can be deadly.

I'm not saying that them fighting it isn't a good thing, but its hillarious that they're holding themselves out to be crusaders of freedom and privacy when they are one of the most prolific producers of "profile" data. You could even say they create "anti-privacy".

alexqgb2• 13 years ago

The difference is that they mine data in order to better target ads. When the Feds ask them to share the same data with them, it's for reasons that are vastly more disconcerting. Intent is everything, and that's twice as true when you're dealing with a lethal organization that shows every sign of having escaped from its legal restraints.

vanattab• 13 years ago

They are fighting for the right to tell their customers about the government mining their data(through google). Google already tells their customers what they mine in theToS and Privacy Policy. I see no hypocrisy.

alexqgb2• 13 years ago

Also, Google isn't brokering the information they gather. From what I understand they're simply using it to target ads (which is what they actually sell), while keeping the data itself very close to the vest.

If you've got something on offer, and want to know who might buy, Google won't tell you who is interested. They'll just deliver your message to the right people, and if you get a suitable response, you'll know that their service was worth the price.

There's a world of difference between the mediated transactions they have with their customers, and the exchange that takes place when the government says "hand over the data itself."

humanspecies5• 13 years ago

Google fanboys make this discussion hard to take seriously.

Google was caught pants down spying on everyone, stop trying to white wash it.

throwaway10001• 13 years ago

> The court approved each of the 1,789 government requests it received in 2012, except for one that was withdrawn.

Scary as hell, considering that one request can be as broad as: “It is hereby ordered that [Verizon Business Network Services'] Custodian of Records shall produce to the National Security Agency…all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls,”

Google should cut the crap with PR moves and stop hoarding so much data about everything we do online. If they have, NSA will get it--one way or another.

burntsushi4• 13 years ago

Google should cut the crap with PR moves and stop hoarding so much data about everything we do online.

I like that Google has a lot of data on me---it makes their services much more valuable to me. I don't like that the government can access it secretly.

These are distinct opinions and both can be reasonably satiated simultaneously if there are proper checks and balances in government.

slg• 13 years ago

Anyone familiar with the constitutional law on this? From a laymen's perspective it seems obvious that the government has some ability to restrict 1st amendment rights on matters of national security. If that wasn't the case, there would be no way to enforce legal restrictions on classified information. It would be the end of all government secrets, both good and bad. Or is this debate simply about where the actual line is drawn for national security and whether this this type of disclosure crosses that line?

zachrose• 13 years ago

Here's a place to start: http://en.wikipedia.org/wiki/Strict_scrutiny

National security most likely qualifies as "compelling state interest" in general, but it's not the only thing the government needs to infringe on constitutional rights. The government also needs to prove that the infringement is narrow and specific.

Even then, I wonder if the "compelling state interest" could be challenged on not being compelling enough.

(I am definitely not a lawyer, just remembering a con law class I took and refreshing my memory with Wikipedia.)

andrewfong• 13 years ago

I'm a lawyer, although not one that regularly practices First Amendment law. That said, zachrose is right that strict scrutiny applies here. Usually, to restrict truthful speech based on the content of the speech, the government must show that (1) there is a compelling state interest and (2) that the government's restriction on speech is narrowly tailored.

National security is pretty compelling, but it's unclear how prohibiting disclosure of the number of requests is narrowly tailored to that interest. Without knowing more details about the nature of the program, it's hard to say why the number matters. But if the NSA can't demonstrate how disclosing a specific number, as opposed to an approximate range, has a noticeable impact on national security, the law would likely not be in their favor.

anigbrowl• 13 years ago

Here's some useful historical context with good legal references but written for the lay person: http://www.freedomforum.org/templates/document.asp?documentI...

caf• 13 years ago

Most restrictions on classified information are enforceable because those with access to the information have voluntarily surrended their first amendment rights in respect of classified information as part of the agreement they entered into when they obtained a security clearance.

It's much less clear when you are talking about someone who hasn't agreed to the clearance process. In 1979 the Department of Energy tried to prevent The Progressive magazine from publishing an article by Howard Morland describing the design of the Hydrogen Bomb. The article was derived from unclassified sources, but the government argued that information about atomic weapon design is "born classified". There was no conclusive judgement, as the government eventually dropped the case and the article was published.

arunabha• 13 years ago

Much as I would love to see Google prevail in this, there is just no chance that would happen. The implications to any other form of Govt gag orders (think sealed court records) would be immense.

e3pi• 13 years ago

...The implications to any other form of Govt gag orders (think sealed court records) would be immense.

Gag order also of Greenberg/Guardian, then what are ES' options?

"....The Ministry of Defence has issued a D notice preventing the UK media from 'publish[ing] information that may "jeopardise both national security and possibly UK personnel"'.

http://www.guardian.co.uk/world/2013/jun/17/defence-d-bbc-me....

what's left-- pastebin, Kim Dotcom, Prate's Bay, that New Yorker thing(no, gag order), Anonymous posting onto defaced sites, Wikileaks, ... ?

humanspecies5• 13 years ago

I recommend everyone have a look at the leaked documents and the extent to which all those companies participated in it and then judge their public relations reactions afterwards.

After the scandal was revealed, and only after it was revealed in an unprecedented act by Snowden, did Google come out in favor of their customers. This is ridiculous.

Google was caught pants down and there's no amount of PR bullshit they can use to white wash this and pretend the government forced them to do it. They willingly participated in exchange for political status with the government, that is the raw truth.

psbp• 13 years ago

Can you explain what each slide of the document means and how the program was actually implemented? I still have no idea despite reading a variety of different articles.

pyre2• 13 years ago

  | After the scandal was revealed, and only after it
  | was revealed in an unprecedented act by Snowden,
  | did Google come out in favor of their customers

Was Google not already in court opposing NSLs? Filing with FISA was something that the EFF recently spear-headed.

I'm not saying you should trust Google with all of your secrets, or even all of your data, but it should be an informed decision.

humanspecies5• 13 years ago

We have enough information for an informed decision now, thanks to Edward Snowden.

r-shirt4• 13 years ago

Let's presume that PRISM is the NSA getting the ability to copy unencrypted data being transferred across these companies' internal networks. Is that one request that affects every account or one request that affects zero accounts? I would expect that the latter would be asserted while the former is more true. And I can almost hear the justification: "if people weren't sending email from Gmail to Gmail and instead from Gmail to foomail, we could be collecting all of this information. You need to give us access to your network, or we need to break you up into smaller pieces which need to send information unencrypted to work."

mpyne5• 13 years ago

It's not copying data being transferred, it's copying data sitting on-disk (which does include sending along updates to that data on-disk). NSA was getting that data even before PRISM, but companies were compiling it and sending it manually.

r-shirt4• 13 years ago

Was this stated somewhere that I didn't see it?

thrownaway24243• 13 years ago

Why do you assume that internal network traffic is not encrypted?

r-shirt4• 13 years ago

If one server queries a MySQL database on another server inside my network (using private IP addresses), I don't encrypt what's transmitted between the two servers any more than what's done by default. And that default isn't SSL or anything of the sort because I'm expecting that my network admin knows what they're doing with firewalls to keep the unwanted packet sniffers out of the private network. Besides, I don't want to spend the extra CPU cycles on encrypting when I can just fortify the firewall.

rasterizer3• 13 years ago

Again with the 'carefully worded denials' - the denials were similar because they were accused of the same thing, which is allowing "direct access".

The most worrisome and misunderstood part of these reports is the "direct access" bit: can the government arbitrarily query company servers? their denials address that, they clearly say that is not the case, instead they sftp the data after being served with court orders or warrants and yes also the secretive FISA requests.

So by revealing the number of FISA requests they receive and their scope they hope to clear this "direct access" mess. As even FISA orders are much more acceptable than wholesale access.

As for the development being reported here: I think it has merit seeing how this clearly falls under the first amendment, but I'd like a lawyer to chip in.

[edit: clarity]

burntsushi4• 13 years ago

So by revealing the number of FISA requests they receive and what sort of data is being sought they hope to clear this "direct access" mess. As even FISA orders are much more acceptable than wholesale access.

Not necessarily. As another commenter pointed out [1], a single FISA order doesn't have to correspond to a single citizen. One order can encompass millions of accounts.

their denials address that, they clearly say that is not the case, instead they sftp the data after being served with court orders or warrants and such, including the secretive FISA requests.

While I think it's reasonable to doubt the claim that the NSA has true direct access to servers, I haven't been given a reason to doubt that information can be requested without court orders, warrants or FISA requests.

[1] https://news.ycombinator.com/item?id=5901811

GreatBuck2• 13 years ago

Not necessarily. As another commenter pointed out [1], a single FISA order doesn't have to correspond to a single citizen. One order can encompass millions of accounts.

The court document from Google (http://assets.nationaljournal.com/img/MOTION.pdf) clearly states the desire to clearly list, in aggregate, the number of accounts impacted.

rasterizer3• 13 years ago

They would want to publish the scope of the FISA requests.

The other companies aren't going this far and I think they deserve a credit for what they're doing.

And I disagree with commend you link to, the solution isn't limiting data collection, sure it makes you a target but more data equals a better product. It's an issue of government overreach not engineering decisions.

redblacktree• 13 years ago

This is a distinction without a difference. If I (the NSA) can request yesterday's backups, isn't that close enough? I don't particularly care if they have direct access to Google's servers. Having access to the backups (through sftp or whatever other mechanism) is bad enough.

skybrian• 13 years ago

It's a checks and balances thing. If you're a large ISP and you retain physical control over your servers and network, if you're asked to hand over too much information, it's at least possible to delay and fight it in court. If they have root then you don't even know what they've done.

lazyjones2• 13 years ago

If they had to request anything from Google or FB, they wouldn't need such huge storage capacities. My guess is that these large companies have been forced to forward data (e-mail, chat lines, posts...) to the NSA as it arrives. It's not "direct access", it facilitates all the searches the NSA could wish for on NSA's own servers and does not contradict any of Google's, FB's or the NSA's claims so far from what I can tell (they store the data, then "collect" it as needed).

discostrings• 13 years ago

From what Google's said, it appears the government can't arbitrarily query Google's servers. Google has stated pretty clearly that someone at Google has to check off before an account is pushed to a machine that the government can access and that the data cannot be accessed without this happening.

That's Google. We've yet to hear from many of the other companies in the program about whether this sort of access is technically impossible, or whether it's an honor system that the government is supposed to follow.[1] I haven't been closely following the Facebook, Microsoft, or Apple statements, so maybe they have also been explicit that it is a restriction that is implemented by technical means. Some of the companies haven't said anything yet.

How many of the companies really make sure there is legitimate documentation for each request? Do they really do this every time, or have they become resigned to the fact that there's nothing they can do, so they just rubber stamp each request coming through, even without the proper legal documentation?

[1] This seems to be a major issue--the President and NSA leaders have claimed that analysts "cannot" access your phone metadata and phone call content without the correct legal instruments. But by "cannot", they seem to mean "they are not allowed to" rather than "it is not possible for them to".

famousactress• 13 years ago

re: [1]... Right. In fact, this morning I think we heard this is definitely policy and not technology. We were told that for this to happen [paraphrasing from memory] "One person would have to break the law [analyst], his boss would have to break the law [because he's supposed to approve the access], and remember this entire process is 100% auditable, so we'd catch them for sure."

Of course, this isn't remotely reassuring for a bunch of reasons. Most of all though, I'd be curious to hear more about how the auditing process works. He kept saying "auditable" I noticed, not you know... "actually audited".

joering2• 13 years ago

Google has stated pretty clearly that someone at Google has to check off before an account is pushed to a machine that the government

my understanding of PRISM and all this is that the entire internet is vacuumed and everything is stored, just in case. I cannot imagine a guy "checking off" on every email or every mailbox for millions of gmail users every day or even once a month manually. With 11K terabytes of digital data created per hour by US, I cannot imagine any sort of manual system being implemented.

It has to be totally entirely automatic, otherwise it won't fly.

dvmmh• 13 years ago

Why do people assume that Google has the only copy of what is on Google's servers. It is not hard for the NSA, since they are already admittedly the "man in the middle" to have copies of all data going in and out of any server they target.

humanspecies5• 13 years ago

The leaked slides say clearly the government can query the servers at will. They get real time login data, logout data and payload data.

I don't know why people keep putting this into question, giving Google the benefit of the doubt, when they were caught pants down, no questions asked.

If the companies mentioned in the slides just complied with the law, why would they be singled out in those slides? Honoring search warrants and FISA requests is an obligation, not an extra.

The reason Google was singled out as a partner since 2009 is because they gave the government full unrestricted access.

smtddr• 13 years ago

Well, judging by your comment history(about 100% anti-Google), I won't be taking your word for it. I'm still waiting for the dust to settle and see where Google ends up. Right now, it's just a bunch of people pointing fingers at each other. The truth will be found once everyone calms down.

grey-area• 13 years ago

The reason Google was singled out as a partner since 2009 is because they gave the government full unrestricted access.

Which part of the PRISM slides make you think that? They certainly indicate pretty much full access to accounts which have been OK'd by Google (at least in archive form), but that is very different from 'full unrestricted access' to servers. I'd say we don't really know the extent of it, and welcome Google's decision to try to challenge the government in court to reveal more details.

As far as I read them the few PRISM slides we've seen don't really indicate:

1) The extent of access (how many accounts, how many accounts per order etc) 2) The mechanisms for FISA access 3) Any time delay in receiving documents/access 4) Whether data is realtime or not after access is granted

and the figures that FB, MS, Apple have announced hardly constitute full unrestricted access to all accounts as you seem to be implying. It's still a serious invasion of privacy, there are serious doubts about the efficacy of the FISA court supervision, and for foreigners I'm not even sure there are any protections at all (the NSA might not even feel obliged to get specific permission for non-US communications), so for everyone outside the US this is really invasive, but I'm not sure I can agree with your characterisation of these slides as showing full access (full access to what, to all Google servers, seriously?).

aryastark• 13 years ago

Google and Facebook are trying to clear their name here.

But what I'm afraid of is that this mess with deciding exactly how much access the government has to Google will turn into a distraction from the larger picture. Which is that, in all likelihood, the NSA does not have access to Google. What they do instead, and what the name PRISM implies, is that they connect to the backbone (Verizon/AT&T), scoop up ALL data, and store it in their freshly built data center in Utah.

The slides I saw seemed to indicate when certain applications or filters came online. Such as a filter for Facebook data, or a filter for Google search/map/GPS data, etc. That's how I interpreted the graph, at least. It would indicate the NSA is rolling out specialized applications to handle data coming to and going from specific sites. Which allows them to more intelligently decipher what is being said, in more or less shotgun fashion.

Hence, the name PRISM. It's a project to split the full Internet stream into a Facebook bucket and a Google bucket, etc.

seanmcdirmid• 13 years ago

It doesn't help just to have network transmission data if the data is encrypted. Google has increasingly been moving all of their services to https, I think facebook might be also.

chaz3• 13 years ago

The problem I have with the "duplicate the Internet" theory is that it favors the hard solution vs the easy solution.

The hard solution is to secretly duplicate traffic from every data center operated by each of these companies, reverse engineer every HTTP request that goes back and forth so that the data can be parsed, maintain it for every product change that happens at these companies, circumvent HTTPS by compromising the certificate authorities, store it all, and still maintain a massive analytics tool that can make sense of the astounding amount of data coming through.

The easy solution is to avoid all of the technical ugliness of acquiring the data, and just legally make the companies give you the relevant information, neatly structured and packaged. NSLs are the ultimate hack.

XorNot• 13 years ago

If the government had a wiretapping program for fiber-optics, they wouldn't call is PRISM. Why? Because you don't name your top-secret stuff with descriptive names that imply what it does.

PRISM is a web-app. The slides make it pretty clear its a web-app. The army field manual link helpfully posted before in this discussion outright says its a web-app.

fernly2• 13 years ago

Steve Gibson presented a good case[1] that the companies are telling the truth, but that NSA nevertheless has the equivalent of full access by tapping the tier-1 or -2 router nearest to each. Fiber-optic "splitter" makes the codename "Prism" cogent.

[1]http://twit.tv/show/security-now/408 for audio and relevant links

MichaelGG2• 13 years ago

Steve Gibson doesn't really know what he's talking about, does he?

At any rate, assuming all fibre optic is tapped, how does that explain breaking SSL? That's a really big jump.

salmonellaeater• 13 years ago

From the article:

When news of the PRISM program was first revealed two weeks ago, officials at Facebook, Google and other tech firms informally conferred on a public response...

flyinRyan2• 13 years ago

First of all, it doesn't really matter what Google says because they could be lying. Second of all, there are trivial ways around "direct access". Google will have world class mirroring capabilities, so they need only mirror to a government server. They could do this manually (per request) or automatically. This would fit within "no direct access".

spankalee• 13 years ago

Why would they possibly do that?

jstalin• 13 years ago

Now that EFF broke the barrier in filing with the FISC, I have a feeling we'll see a lot more of this. And that's a good thing.

I expect Google's filing to show up here shortly: http://www.uscourts.gov/uscourts/courts/fisc/index.html

rasterizer3• 13 years ago

Here it is: http://www.scribd.com/doc/148608149/Foreign-Intelligence-Sur...

GreatBuck2• 13 years ago

Google's Court document is here: http://assets.nationaljournal.com/img/MOTION.pdf

namank2• 13 years ago

It's a start!

So what can the gov't do if companies don't co-operate? With individuals, there is blackmail and illicit co-ercion. What does the gov't do to corporations worth updwards of 100B to get them to comply?

gsmaverick• 13 years ago

http://en.wikipedia.org/wiki/Joseph_Nacchio

namank2• 13 years ago

So, if Google does continue like it should, at the very least we should watch out for Sergei & Larry's dirty laundry hitting the internet soon enough?

blackaspen• 13 years ago

This is where we get see what "Too Big to Fail" actually looks like.

If Google's too big to fail on it's own, but the Feds want them to fail because they're (Google) are poking around too much, what happens?

AnthonyMouse2• 13 years ago

This is where we need more than one company to stand up. If Google is the only one doing it, and the government vigorously slaps them around a few times, more than likely they'll stop before they go out of business. And then all the tech companies get put in their place -- want to resist government overreach? You're going to get damaged.

On the other hand, if they all resist, who is the government going to retaliate against? The entire industry? It would be too great a hit to the economy.

So the question is whether Facebook, Apple et al are going to take the short view or the long view. If they let Google be the only one to stand up then maybe it will encourage the government to damage their competitor, but in so doing set the precedent that the industry won't stand together on issues like this, which can only make the government more brazen in the future.

motters• 13 years ago

My current theory on this is that companies such as Google probably generate vast amounts of metadata (there must be a fair amount of it behind Google Now), primarily for advertising purposes, and that it's this which PRISM has "direct access" to under some sort of gagging order.

thelukester• 13 years ago

Yeah, that's right according to the Supreme Court, corporations now have citizenship, so they should have First Amendment rights too. Wouldn't that be ironic if that ruling actually did some good for our nation.

rayiner2• 13 years ago

If anything good comes out of this NSA thing, I think it's the fact that liberals will be forced to concede that Citizens United was, in fact, the right decision. Do you really want the government arbitrarily banning speech by corporations that it deems to be impermissible? There is a reason the ACLU came out in favor of the ruling in Citizens United...

Vivtek• 13 years ago

Corporations cannot speak. Only people in them can. Sheesh.

No. Nobody is "forcing" me to concede that. Certainly no logical aspect of this situation.

clicks2• 13 years ago

For as much as I'm familiar with the CU vs. FEC case, the reasons don't stack up all that well for corportation's 'right of speech' in this context. Trevor Potter I think very reasonably explains why here: http://www.pbs.org/moyers/journal/09042009/watch2.html

Mainly, that it's essentially overstepping the speech of the less powerful. It results in the poor having unequal, lesser freedom of speech.

I would have expected you to be on my side on this issue, as you seemed to be more of a 'spirit of the law' guy rather a 'letter of the law' kind of guy.

blisterpeanuts• 13 years ago

I'm not a terrorist; I'm a law abiding citizen of the U.S. Can I opt out of the PRISM thing? All I'm doing is adding unnecessary noise to their data. I want to do the patriotic thing and help my country, and in this case the best way to do that is to shrink the pool of data that they must monitor. (And no, I'm not kidding!)

jfoster2• 13 years ago

If you're ordinary enough you're probably not triggering any flags, so you'd probably already not really being considered part of the dataset.

One person opting out probably won't help them at all, but it would be interesting to consider a more scaled up "opt out" program whereby you go through a one-time deep check and might be granted less monitoring as a result. They would need to sufficiently automate it to make it feasible, though. I also suspect the people who feel most strongly about opting out would also be against the idea of even a one-time check.

sneak3• 13 years ago

but it would be interesting to consider a more scaled up "opt out" program whereby you go through a one-time deep check and might be granted less monitoring

No, that would not be interesting, that would be treason.

jrockway• 13 years ago

If you want to help the country and they won't let you do so by opting out of prism, you can always mail the government a check to make up for the prism resources you're consuming:

http://www.treasurydirect.gov/govt/resources/faq/faq_publicd...

genwin• 13 years ago

In the petition, Google is seeking permission to publish the total numbers of requests the court makes of the company and the numbers of user accounts they affect.

Nice confirmation that the "in the last 6 months" numbers reported by Facebook et al are worthless. No company has yet said how many users are affected total. I assume it's all users, by an earlier "request" (actually all but an order). Why shouldn't an organization that gains a bigger budget the more people it surveils demand the moon?

If we're to believe the number of requests reported so far are 1-to-1 with users, all the information could fit on a single drive. The Bluffdale, UT facility seems capable of handling a good amount of data for each of the entire digital population, even if half of the buildings is space for bureaucrats.

logn• 13 years ago

Hypothetically, couldn't Google just decide to break the gag order, be charged with a crime, and then argue this issue in front of a jury of their peers, and then be acquitted, establishing a precedent? It would probably be appealed all the way to the Supreme Court. I know Google is probably risk-averse enough to not do this, but they'd garner a lot of good will I think. Maybe I'm missing some gotcha that they'd never be granted a trial and the board of Google would end up in secret prisons.

SEMW2• 13 years ago

...argue this issue in front of a jury of their peers, and then be acquitted, establishing a precedent?

This is conceptually confused. Juries aren't judges or lawyers. They don't get to rule on questions of law, and their verdicts don't set precedent.

If Google does what you suggest and then a judge rules that, as a matter of law, the FISC order was unconstitutional, that means that what Google would have been accused of doing was not illegal -- which means no jury ever gets involved.

If on the other hand a judge holds that what Google would be accused of was illegal, then you get a jury to decide whether, as a matter of fact, they did what they're accused of. But in that case, an acquittal by the jury wouldn't set a precedent that their actions were legal, any more than a jury finding someone not guilty of murder sets a precedent that murder is legal.

All of which means there's no reason for them not to seek a declaration of the order's unconstitutionality before breaching it.

pilsetnieks• 13 years ago

Jury nullification: https://en.wikipedia.org/wiki/Jury_nullification

A jury can rule on questions of law.

skygazer• 13 years ago

It will be interesting to see how few or many FISA requests there really are. Google implies its a small number. The government was okay releasing the numbers opaquely, inside an aggregate of all law enforcement requests, which also implies to me the number may actually be low. If it's conspicuously low, we're left to wonder what alternative sources of raw data they're relying upon primarily. They may be trying to avoid that implication, thus, release of a low number may appeal to Google, but not the government.

coherentpony• 13 years ago

I guess since now corporations are people, this should be no problem.

mtgx• 13 years ago

Hey, Google. Reporting what the government is requesting en-masse is nice, but how about you actually give us end-to-end encryption for as many of your services as possible, so we don't have to second-guess our thoughts and chats anymore simply because we know the government is watching and will be getting that data no matter what? It might help with the whole trust issue you're having now.

Ultron• 13 years ago

Maybe Google has a business relationship with the NSA. It's likely the reason Google hasn't added encryption and never will - the boss doesn't want it.

driax• 13 years ago

I don't get it when people keep repeating something like this. Google pushed a lot for adding TSL/SSL encryption between Google's servers and the client, to the point of inventing several performance improvements in TSL start-up. However they sure don't encrypt inside the client [note] and then sends it as a blob to server to storage, mostly because that's not really how webapps can work (for practical "can work" values). For example this wouldn't allow you to full-text-search all your own emails in gmail. Moreover this would mean significant performance regression every time you would open up any Google web app, because the client would have to decrypt all data, without much help from indexes. [note] Even encrypting and decrypting in the client would only help so much. It is likely they could be ordered to splice they data while in the client for any person of interest. Cloud web apps simply requires a legal system that respects peoples' data.

magicalist2• 13 years ago

As has been replied to you several times, you don't want your web-based client in charge of client-side encryption. Yes, it may help as a second line of defence against run-of-the-mill phishing and hacking attempts, but it does absolutely nothing against government requests, as the government can either request the private key that you've stored on their servers, or the government can force them to give you broken encryption software. See, as always, [1].

Whether or not your browser client is providing the encryption, however, you've also rendered completely useless any reason for having web mail in the first place, as you've become next-to-useless to them (no content for ads, no content for things like Google Now) and all their infrastructure is useless to you (no content to search over, no content to spam filter, etc). You no longer have a relationship except they're your SMTP gateway and a backup drive. You can get those today all over the place, you don't need google. If you want to stick with Google, go download a desktop mail client and chat client and install the open source PGP and OTR plugins for them. You can do this right now.

[1] http://en.wikipedia.org/wiki/Hushmail#Compromises_to_email_p...

declan3• 13 years ago

First, that was the non-original version of Hushmail, and over a decade (of development of more capable browsers) has elapsed since the original. Second, the business model would then change to charging for email. Google does that for many services already; paid Google business apps accounts currently provide "no content for ads."

MiguelHudnandez• 13 years ago

Could this lead to an interesting development in the issue of "corporate personhood?"

I would love to see a ruling that corporations have no constitutional rights. But the people running them do, of course.

adamconroy• 13 years ago

Its not a big deal, google should quietly announce they are retiring the API and the government can try and contact someone at google.

spoiledtechie• 13 years ago

I am sort of upset with Google. Why didn't they do this in the first place? Honestly, seems like they are back pedaling to save face.

jacoblyles• 13 years ago

I don't see how freedom can last in a country for long with secret laws.

triplesec3• 13 years ago

A little late, methinks. Why didn't they - in concert with the other large companies - do this before, if they're so not evil?

tomkarlo3• 13 years ago

Ultimately, a company has to have a compelling business interest to justify pursuing something like this. Until this became a public issue for these companies, it might be hard to argue that they'd be acting responsibly to pursue a legal case where the only result would be more detailed disclosure of these requests (not any change to the requests themselves.)

Google's arguably been the most active of the major tech firms in getting permission to disclose ranges of requests to date (has anyone else?); it's not clear there would have been a good business reason to pursue what may end up being a very expensive case if it proceeds all the way up through the court system.

triplesec3• 13 years ago

And herein lies the issue of "companies exist solely to line the coffers of shareholders", with no responsibility to other stakeholders which is a narrow interpretation which had come about especially in the last 30 years or so. It's not a certain thing, although very common. Thorsten Veblen would call it a problem of remote capital, although other factors have also been at work since the 1960s.

humanspecies5• 13 years ago

Fucking Google is manipulating these threads, trying to white wash their secret spying deals.

Don't fall for this bullshit, Google has been in the spying business for ages now. They joined the NSA program in 2009 and have been in trouble constantly in every spy scandal there is some google product involved. Wake up already.

contingencies• 13 years ago

Google reputation in shreds; funds transparent PR stunt

hkmurakami• 13 years ago

My initial reaction to all the positive actions by these companies is to be a cheerleader and urge them on for "fighting the good fight", but I can't help but then turn around and be cynical. After all, as far as we know they were not proactive at all until the leak happened.

Do they have the users' best interests in mind? I honestly can't say so.

marme• 13 years ago

I think too many people and companies are tip toeing around the issue. Some more people need to take a stand for what they believe in and stand up to the government. If google believes so strongly that their rights are being violated they should hold a press conference and publicly release all the gag orders and data requests they have received. Let the government try to charge them with violating the gag order and then they can really challenge the order Federal court not this secret court.

The justice department almost certainly wont try to charge them with violating the order because they know that it will get declared unconstitutional by the supreme court and a giant company like google has plenty of money and lawyers to take it all the way to the supreme court. Most companies are too scared to see what will happen if they violate the unconstitutional order

asab• 13 years ago

I appreciate how the article frames it as a matter of Google preserving their own reputation, as opposed to principle, or it being "the right thing to do." They have been receiving information requests with gag orders attached for years, but are only fighting it now that the cat's out of the bag and they have something to lose. Until then, it seems that Google was fine with the situation as it stood.

I think it's an important distinction to make, and underlines how companies ultimately serve their own self interest before anything else; they're not acting nobly, and the ultimate responsibility lies with the individual.

veidr3• 13 years ago

This is, I think, the only way for these tech giants to come out of this scandal better off than they went in -- to take a stand, and take the fight to the feds, hard.

Google does have legal resources far beyond anything a normal citizen has, and since they have been compelled to secretly give up their data, they also have the legal standing to file suit (presumably, although who can know when you have secret laws decided in secret courts via secret decisions...).

So uh, go google!

white_devil4• 13 years ago

This is, I think, the only way for these tech giants to come out of this scandal better off than they went in -- to take a stand, and take the fight to the feds, hard.

This is a PR-stunt, nothing more. Google could have "challenged" any and all gag-orders even before PRISM was leaked.

Was giving NSA wholesale access to user data bad in 2009? -Why not challenge that shit in 2009? Gag-orders getting in the way? -Well why not challenge those in 2009 then?

I guess they were too busy extolling the virtues of being Open and Transparent: http://googleblog.blogspot.com/2009/12/meaning-of-open.html - that's December 2009, with PRISM in place for almost a year. Fucking scumbags.

veidr3• 13 years ago

I'm not as emotionally invested as you seem to be in whether Google is good or bad. It's a corporation, so I assume they will do whatever they can to make money, and will be generally okay with fucking people over if needed, especially if not many people will know about it. Just like Yahoo, Apple, Microsoft, and everybody else on that scale.

So why didn't they challenge it in 2009? Probably because there wasn't that much in it for Google, since wasn't a big national shitstorm blowing that way. But now there is. That is the point I am making.

So, now, Google could serve their own corporate interests by fighting hard against the rise of the secret police. Would that make Google an awesome person? No, it would still be a selfish corporate entity trying to get money, just like it always has been

But, it would (rightly) be perceived as a force for good, on the right side of this particular battle with tyranny. That would help you, me, America, and the world... but it would also help Google, it would seem.

And some of these other "fucking scumbags" (which I assume is your term for "corporations acting normally"), like Apple, Yahoo, etc., might be encouraged to do likewise.

In other words, it takes public outrage to create the shitstorm (which you will have noticed is in the mainstream media, not just nerd forums like this one), but once the outrage is in place, that helps align the interests of corporate behemoths like Google with what you and I would probably agree is Good (i.e., not having fucking secret police using secret laws to evade the control by the citizens of the nation).

declan3• 13 years ago

You're asserting without evidence that FedGov had or has "wholesale access" to user data. This is a false assertion.

Google's legal brief filed yesterday cites the "PRISM" flap, and false allegations like yours, as justification for being able to lift the gag order. They didn't have as strong an argument two weeks ago.

pconf• 13 years ago

I would rather see them challenge FISA requests on the basis of tax law. These requests are, in addition to everything else, a form of taxation.

Google challenges U.S. gag order, citing First Amendment

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