Microsoft and Google (don’t really) want to tell you more about government data requests

Sounds nice, doesn't it? Two big names have listened to the concerns of the people that matter -- their customers -- in the wake of the NSA debacle, and want to share more information with the public about precisely what information the government is asking them to hand over. If only it were that simple.

In a blog post on TechNet, Microsoft General Counsel Brad Smith reveals that both Microsoft and Google filed lawsuits back in June to try to force the government to permit them to publish details of data requested under Foreign Intelligence Surveillance Act (FISA) orders. Smith says they [the two companies] believe they have a "clear right under the US Constitution to share more information with the public".

Despite weeks of negotiations with government lawyers, talks have amounted to nothing. According to Smith, on six occasions the government was granted more time to respond to the lawsuit, but nothing has come of it.

My colleague Brian Fagioli wondered aloud, on group chat, why the company has agreed so many times to grant the government more time to respond to the lawsuits. "After three attempts, did they not get the message?", he pondered. I can see his point to some extent, but at the same time Microsoft and Google find themselves in an awkward position.

If they keep giving the government more time to reply, people will complain that they are bowing to pressure, or not being hard enough on authority. Give up trying after three attempts and people would complain that they had given in too easily. It's a classic case of damned if they do and damned if they don't.

At the same time, continually making the requests could be seen as being a fool's errand. The government is so unlikely to change its mind about what data can be released it is practically pointless to ask about it. It's all too easy for catch-all "national security" reasoning to be bandied about.

So what's all the fuss about? Microsoft's blog post points out that the government will "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". But that's not enough. Smith believes 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".

He goes on to say, "And unless this type of information is made public, any discussion of government practices and service provider obligations will remain incomplete". When he says, on behalf of Microsoft and Google, "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", you can almost foresee the shoulder-shrugging and hand-wringing as they sigh, "well, we tried!"

Even if Google and Microsoft get what they are fighting for, it will be something of a Pyrrhic victory. We already know that the lawsuits have been dragging on for at least a couple of months; that's not cheap.

If they manage to "force" the government to be more transparent about collection of and use of data, do they not realize that the same demand will very likely be made of Google and Microsoft by their customers?

If Microsoft and Google reveal more information about the data they've already shared with the government, is this going to make customers more or less trusting of the companies?

Yes, this is obviously a PR campaign. The likes of Google and Microsoft get a lot of bad press (as well as good) so it should come as no surprise that they're keen to come across as the good guys, fighting for the average man on the street.

But to me it just comes across as misguided and ill-judged. It's a PR campaign doomed to backfire. Freedom of speech is one thing -- and it's something I'm a keen advocate for -- but to play the "constitutional right" card in this instance feels cheap, and undermines the whole debate surrounding the secret collection of data.

Microsoft and Google need to appreciate that what they're asking of the government could well be demanded of them. Is that a price they're willing to pay?

I have reached out to Google for a statement on the matter, and will update this post accordingly.

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