When it comes to national security and the Internet, it seems, there's classified information -- and then there are secret arguments about the information.
In a potentially landmark dispute, Google (GOOG), Facebook and other tech giants are crying foul over the Justice Department's response to a lawsuit in which the companies seek to reveal more details about official requests for Internet users' data. After submitting its written arguments directly to a judge, the companies say the government has given them a censored version, while refusing to let even company lawyers who have security clearances review the full brief.
It's hard to win a debate when you don't know what the other side is arguing, the tech companies said in their own filing this week at the Foreign Intelligence Surveillance Court, a little-known division of the federal judiciary that frequently operates under a cone of silence while ruling on national security programs.
While government officials may believe their arguments involve national security, they haven't made a clear case for concealing them, according to the tech companies, which urged the court to reject the government's filing unless they can see it, too.
The dispute began this summer after a former National Security Agency contractor revealed the existence of an intelligence program known as Prism, which authorities have used to gather information about certain customers of major U.S. Internet companies. Facing a global uproar, and potential loss of their customers' trust, the companies have insisted they surrender data to the government only when they are legally required to do so.
Tech companies have sought to put the program in perspective by issuing annual reports about their compliance with government information demands. But national security rules have prevented them from saying exactly how many and what types of demands they receive.
After negotiations failed to convince the government to allow more disclosure, five companies -- Google, Facebook, Microsoft, Yahoo (YHOO) and LinkedIn -- filed legal motions arguing that the secrecy rules infringe on their First Amendment rights of free speech.
In response, the government filed a 26-page brief with the surveillance court. It argues that publishing a breakdown of the number and type of information requests "would be invaluable to our adversaries, who could thereby derive a clear picture of where the government's surveillance efforts are directed and how its surveillance activities change over time, including when the government initiates or expands surveillance efforts involving providers or services that adversaries previously considered 'safe.' "
At least five pages of the government's brief, however, are heavily redacted with black lines covering much of the text. Attorneys for the tech companies say the government refused to share those arguments, even with company attorneys who already hold top secret security clearances after working on previous cases involving national security matters.
That's a common frustration among attorneys who argue such cases. The government uses secrecy classifications "as a litigation tool," complained Mark Rumold, a staff attorney with the Electronic Frontier Foundation, which has sparred with the government on other cases but isn't involved in this one.
"A lot of times you can guess what the government has said, but the courts don't respond well to speculation," he added. "Any time you don't have access to all the facts, it's going to make litigation a pretty one-sided endeavor."
Government attorneys weren't immediately available for comment.
Meanwhile on Wednesday, a Senate subcommittee heard testimony from a Google official and others in favor of a congressional bill that would allow the kinds of disclosures the companies want.
Incomplete reports about the government's surveillance efforts "undermine confidence in Internet services" that rely on "user trust," said Google's Richard Salgado in prepared testimony, who warned that those concerns may have financial consequences for U.S. tech companies and the global Internet economy.
Contact Brandon Bailey at 408-920-5022; follow him at Twitter.com/BrandonBailey.