Negotiations on transparency have failed, and Microsoft and Google are moving forward with litigation against the U.S. government. While the government seems to be willing to provide numbers on total requests, there is apparently not enough information being provided on what exactly the requests demand.

“The purpose of our litigation is to uphold this right so that we can disclose additional data,” says Brad Smith, general counsel, of the Redmond giant. The two companies had filed a law suit in June to address the issue of transparency in government requests for data.

Brad Smith (General counsel and EVP, Legal & Corporate Affairs, Microsoft): 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.

On six occasions in recent weeks the companies agreed with the Department of Justice to extend the government’s deadline to reply to these lawsuits, but the negotiations ended in failure, says Microsoft.

The governmental decision to begin publishing the total number of national security requests for customer data for the past 12 months and do so going forward once a year is not enough, it is also vital to publish information that  shows the number of national security demands for user content, such as the text of an email, as opposed to just the metadata, such as the subscriber information associated with a particular email address, says Microsoft.

Here is the text of Mr. Smith’s blog:

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.

On six occasions in recent weeks we agreed with the Department of Justice to extend the Government’s deadline to reply to these lawsuits.  We hoped that these discussions would lead to an agreement acceptable to all.  While we appreciate the good faith and earnest efforts by the capable Government lawyers with whom we negotiated, we are disappointed that these negotiations ended in failure.

Yesterday, the Government announced that it would begin publishing the total number of national security requests for customer data for the past 12 months and do so going forward once a year.  The Government’s decision represents a good start.  But the public deserves and the Constitution guarantees more than this first step.

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.

The United States has long been admired around the world for its leadership in promoting free speech and open discussion.  We benefit from living in a country with a Constitution that guarantees the fundamental freedom to engage in free expression unless silence is required by a narrowly tailored, compelling Government interest.  We believe there remains a path forward that will share more information with the public while protecting national security.  Our hope is that the courts and Congress will ensure that our Constitutional safeguards prevail.

This is the text of Google’s statement

While the government’s decision to publish aggregate information about certain national security requests is a step in the right direction, we believe there is still too much secrecy around these requests and that more openness is needed. That’s why we, along with many others, have called on the U.S. government to allow us to publish specific numbers about both FISA and NSL requests.

[Image courtesy: Google]