The Department of Justice has announced a new deal with major tech companies and communications providers that will allow more disclosure about government data requests. The new reporting methods allow each company to publicly announce the number of FISA requests and national security letters it has received in a given year, as well as the total number of users affected. Both numbers will still have to be reported in bands of 250 or 1000. The deal also applies to phone companies.
“New Capability Orders”
There will be a delay of two years for data relating to the first order that is served on a company for a platform, product, or service (whether developed or acquired) for which the company has not previously received such an order, and that is designated by the government as a “New Capability Order” because disclosing it would reveal that the platform, product, or service is subject to previously undisclosed collection through FISA order. For example, a report published on July, 1, 2015, will not reflect data relating to any New Capability Order received during the period ending December, 31, 2014. Such data will be reflected in a report published on January, 1, 2017. After data about a New Capability Order has been published, that type of order will no longer be considered a New Capability Order, and the ordinary six-month delay will apply.
In response to the new reporting methods, Google, Apple, Microsoft, Yahoo and LinkedIn have announced they are withdrawing their motion against the FISA court. In a joint statement, the companies said:
We filed our lawsuits because we believe that the public has a right to know about the volume and types of national security requests we receive. We’re pleased the Department of Justice has agreed that we and other providers can disclose this information. While this is a very positive step, we’ll continue to encourage Congress to take additional steps to address all of the reforms we believe are needed.
Joint Statement by Attorney General Eric Holder and Director of National Intelligence James Clapper on New Reporting Methods for National Security Orders
As indicated in the Justice Department’s filing with the Foreign Intelligence Surveillance Court, the administration is acting to allow more detailed disclosures about the number of national security orders and requests issued to communications providers, and the number of customer accounts targeted under those orders and requests including the underlying legal authorities. Through these new reporting methods, communications providers will be permitted to disclose more information than ever before to their customers.
This action was directed by the President earlier this month in his speech on intelligence reforms. While this aggregate data was properly classified until today, the office of the Director of National Intelligence, in consultation with other departments and agencies, has determined that the public interest in disclosing this information now outweighs the national security concerns that required its classification.
Permitting disclosure of this aggregate data resolves an important area of concern to communications providers and the public. In the weeks ahead, additional steps must be taken in order to fully implement the reforms directed by the President.
The declassification reflects the Executive Branch’s continuing commitment to making information about the Government’s intelligence activities publicly available where appropriate and is consistent with ensuring the protection of the national security of the United States.