Microsoft announced on its blog today that it will move forward with litigation challenging the government to allow it to publish the number of national security demands for user content in a manner that is distinct from other law enforcement requests.

To followers of technology issues, there are many days when Microsoft and Google stand apart.  But today our two companies stand together.  We both remain concerned with the Government’s continued unwillingness to permit us to publish sufficient data relating to Foreign Intelligence Surveillance Act (FISA) orders.

Each of our companies filed suit in June to address this issue.  We believe we have a clear right under the U.S. Constitution to share more information with the public.  The purpose of our litigation is to uphold this right so that we can disclose additional data.

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For example, we believe it is vital to publish information that clearly shows the number of national security demands for user content, such as the text of an email.  These figures should be published in a form that is distinct from the number of demands that capture only metadata such as the subscriber information associated with a particular email address.  We believe it’s possible to publish these figures in a manner that avoids putting security at risk.  And unless this type of information is made public, any discussion of government practices and service provider obligations will remain incomplete.

Over the past several weeks Microsoft and Google have pursued these talks in consultation with others across the technology sector.  With the failure of our recent negotiations, we will move forward with litigation in the hope that the courts will uphold our right to speak more freely.  And with a growing discussion on Capitol Hill, we hope Congress will continue to press for the right of technology companies to disclose relevant information in an appropriate way.

According to Microsoft’s blog post today, the companies agreed on six occasions with the Department of Justice to extend the government’s deadline to reply to the lawsuits before negotiations failed.

Since the first disclosures of PRISM were revealed through former NSA contractor Edward Snowden’s leaks, companies like Microsoft and Google have maintained that initial press reports claiming the companies gave the government unfettered access to their users’ data were not accurate.  Google asserted that the government’s restrictions prohibiting companies from publishing data on national security requests and FISA disclosures was fueling that speculation.  (Granted, Google’s own privacy balancing act and its close ties to the administration have presented challenges for the company as far as public confidence is concerned).

Microsoft published its numbers on national security related requests in June, but it emphasized this was data aggregated with requests from all of the other local, state and federal law enforcement agencies.  Other companies, including Google and Facebook, also published similar statistics with the same caveats.  Most requested authorization from the government to differentiate national security related orders from all others.

Yesterday, Director of National Intelligence James Clapper announced that the agency would begin publishing on an annual basis the total number of FISC orders and national security letters issued and the number of targets affected by these orders, for the prior twelve-month period.

According to an order from the Foreign Intelligence Surveillance Court, available at ZDNet, the government’s extension to respond to Microsoft’s previous challenge expires this afternoon at 5pm.

 
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