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 Companies such as Google Inc and Microsoft Corp have been prohibited
from disclosing even an approximate number of orders they received
from the U.S. Foreign Intelligence Surveillance Court. They could
give only an aggregate number of U.S. demands that combined
surveillance court orders, letters from the FBI, subpoenas in
run-of-the-mill criminal cases and other requests.
The deal frees the companies to say, for example, approximately how
many orders they received in a six-month period from the
surveillance court.
Apple Inc quickly seized on the agreement to disclose that it had
received fewer than 250 demands related to national security during
the first six months of 2013 — a number the company previously was
barred from giving and that it said was "infinitesimal relative to
the hundreds of millions of accounts registered with Apple."
Tech companies have sought to clarify their relationships with U.S.
law enforcement and spying agencies since June, when leaks to the
news media by former National Security Agency contractor Edward
Snowden began to show the depth of U.S. spying capabilities.
President Barack Obama's administration, however, was wary of
disclosing data it believed might help suspected militants in other
countries avoid surveillance.
The dispute wound up in front of the surveillance court, a secret
court in Washington, D.C., that oversees national security
investigations. Five companies asked the court to grant them the
authority to disclose data about the court orders they receive.
The agreement, which was filed on Monday with the surveillance
court, brings an end to the litigation.
The five companies said in a joint statement: "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."
The companies were Facebook Inc, Google, LinkedIn Corp, Microsoft
and Yahoo! Inc. Apple filed a brief supporting the five companies.
The agreement applies to all companies and gives them options on how
to present information.
NUMBERS OF ORDERS
A company that offers email services, for example, would be able to
say it received between zero and 999 orders from the Foreign
Intelligence Surveillance Court during a six-month period for email
content belonging to someone outside the United States.
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"Permitting disclosure of this aggregate data addresses an important
area of concern to communications providers and the public,"
Attorney General Eric Holder and Director of National Intelligence
James Clapper said in a joint statement.
The agreement does not cover what the NSA might gather covertly in
bulk outside the United States, only what it gets directly from the
companies.
The agreement carves out some other exceptions. The numbers
companies can give are only ranges: sometimes in increments of 250,
and sometimes in increments of 1,000. Apple said the national
security orders it received totaled between zero and 249.
If a company introduced a new communications platform, it would need
to wait two years before telling the public about a court order for
information about that platform. The silence is designed to lull
suspected militants into using, or continuing to use, new forms of
communication.
Obama had pledged greater transparency about U.S. surveillance
programs, most recently in a speech he delivered at the Justice
Department on January 17.
After months of negotiations among the tech companies, Justice
Department lawyers and intelligence officials, a breakthrough came
about the night before that speech, according to a government
official who spoke on condition of anonymity.
At that meeting with White House officials, James Cole, the deputy
attorney general, described details of a possible compromise, the
official said. The reaction within the administration was positive,
and during conference calls the following week, the companies agreed
to the proposal.
The companies said in their statement on Monday that they would
consider lobbying lawmakers on other, unspecified fronts.
"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," they said.
(Editing by Howard Goller, Andre Grenon,
David Gregorio and Cynthia Osterman)
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