The question now: Does Google’s interest in providing the public with information about the number of FISA orders that it has received outweigh the national security interest of keeping that number classified?
“Google has a wealth of information just about routing data, when you e-mail, who you e-mail, which e-mail you read first,” says Jane Bambauer, a law professor at the University of Arizona. The Electronic Communications Privacy Act prevents companies with access to user data from distributing it indiscriminately. But gag orders, like the one currently preventing Google and the other Internet providers in the PRISM surveillance program from disclosing FISA data request statistics, might not be in the public interest.
Google has already published the number of National Security Letters that it receives as part of its 2013 Transparency Report with the permission of the FBI, according to the company’s FISC motion. But FISA requests allow a different scope of surveillance, explains Ms. Bambauer. Under FISA, “the government doesn’t have to prove that the person under surveillance has done anything wrong," she says, "just that they are associated” with a foreign power group – a broadly defined term that includes individuals viewed as national security threats to the United States.
“I think there is some information that can likely be made public without jeopardizing” information that needs to remain classified for security reasons, Bambauer says.
Google’s court motion requests permission to publish both “the total number of FISA requests it receives, if any,” and “the total number of users or accounts encompassed within such requests.”