Federal Government Challenged By Google On Warrantless Data Requests
April 5, 2013

Google Issues Legal Challenge Of FBI Warrantless Data-Gathering

redOrbit Staff & Wire Reports - Your Universe Online

Google has taken the extraordinary step of becoming the first major company to openly challenge in court the federal government´s warrantless electronic data-gathering.

On March 29, the company filed a rare petition under seal in the U.S. District Court of Northern California, challenging a national security letter (NSL) issued by the government to obtain private data about one or more of its users.

NSLs allow the federal government to send a secret request to Internet and telecom providers requesting the "name, address, length of service" and other personal information about users as long as the data pertains to a national security investigation. No court approval is required, and disclosing the existence of the FBI's request is not allowed.

This meant that an FBI agent could self-issue an NSL to a credit bureau, Internet provider or phone company with only the sign-off of the Special Agent in Charge of their office, as long as the bureau asserted that the data was “relevant” to an investigation into international terrorism or clandestine intelligence activities.

However, on March 14 a federal judge in California ruled that NSLs that authorize a gag order are unconstitutional. That case was brought by an unnamed telecom company and Internet privacy group Electronic Frontier Foundation (EFF), which argued that NSLs that include a gag order violate free speech rights.

In her ruling, U.S. District Judge Susan Illston in San Francisco agreed that the NSL gag order provisions violated the First Amendment rights of free speech and association, saying they “significantly infringe on speech regarding controversial government powers.”

Because the gag order provisions cannot be separated from the rest of the statute, Judge Illston ruled that the entire statute was unconstitutional, and barred the FBI from invoking such language "in this or any other case.”

The ruling gave the Justice Department 90 days to appeal.

Google has now asked Judge Illston to grant a "petition to set aside legal process" in response to a NSL it received from the FBI.

Documents in Google´s case are almost entirely under seal due to the secrecy requirements surrounding NSLs. Indeed, the petition itself was lodged under seal with the court, and no details of the government´s demand for records were disclosed in the filing.

Petitions "filed under Section 3511 of Title 18 to set aside legal process issued under Section 2709 of Title 18 must be filed under seal because Section 2709 prohibits disclosure of the legal process," wrote Google attorney Kevan Fornasero in the filing, according to Bloomberg News, which first reported on the petition.

Section 2709 is a federal law authorizing the FBI to issue NSLs, and prohibiting recipients from disclosing they´ve received one.

EFF attorney Matt Zimmerman, who represented the unidentified service provider that won the March 14 ruling, said Google is in a strong position to challenge the government´s NSLs.

“The people who are in the best position to challenge the practice are people like Google,” he told Bloomberg.

Among the large service providers, “so far no one has really stood up for their users,” he said, adding that the government has issued 300,000 NSLs since 2000, but only four or five recipients have challenged them.

Civil-liberties groups say NSLs give the federal government sweeping, unchecked powers to spy on citizens, but the government maintains these tools play a vital role in the fight against terrorism and other threats to national security.

Google´s challenge comes just one month after the company became the first to publicly disclose figures about the number of NSLs it has received from the FBI.

But the Internet search giant published the data only after negotiating an agreement with the federal government that it would only disclose a vague range of figures indicating the number of times it received NSLs. As a result, Google´s report indicated that the company had received between 0 and 999 NSLs each year between 2009 and 2012.

Google´s case is: In Re Google Inc.´s Petition to Set Aside Legal Process, 13-80063, U.S. District Court, Northern District of California (San Francisco).