Fri, 14 Oct 2016 00:03 UTC
The FBI secret subpoena, known as a national security letter, does not require a court approval. Investigators simply need to clear a low internal bar demonstrating that the information is "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities."
The national security letter issued to Google was mentioned without fanfare in Google's latest bi-annual transparency report, which includes information on government requests for data the company received from around the world in the first half of 2016.
Google received the secret subpoena in first half of 2015, according to the report.
An accompanying blog post titled "Building on Surveillance Reform," also identified new countries that made requests — Algeria, Belarus, and Saudi Arabia among them — and reveals that Google saw an increase in requests made under the Foreign Intelligence Surveillance Act.
Though the Department of Justice and FBI are required by law, following the passage of the USA Freedom Act, to "periodically review" national security letters to determine if a gag order is still necessary — lifting it either once an investigation has concluded or three years after it's been put in place — only a handful of the hundreds of thousands of letters issued each year have been revealed.
That Google can now speak freely about the 2015 national security letter is a result of those changes.
Government watchdogs have criticized the FBI for abusing national security letters multiple times over the years — for restricting First Amendment protected speech, failing to provide enough evidence to make the requests, and targeting a massive number of Americans without notifying them or giving them the chance for redress. The provisions in the Freedom Act were meant to address some concerns — including what many have argued are unconstitutionally lengthy gag orders.
But Google in its short blog post did not publish the contents of the actual letter the way other companies, including Yahoo, have done in recent months.
Asked about plans to release the national security letter, a Google spokesperson told The Intercept it will release it, though it wouldn't say when or in what form it will do so. Google hasn't previously published any national security letters, though it's possible gag orders for prior demands are still in place.
It's also unclear why Google wouldn't immediately publish the document — unless the gag is only partially lifted, or the company is involved in ongoing litigation to challenge the order, neither of which were cited as reasons for holding it back
"I think the question is really a great and important one for Google," Brett Max Kaufman, a national security staff attorney for the American Civil Liberties Union wrote in an email to The Intercept. Kaufman recently worked with Open Whisper Systems, the creators of end-to-end encrypted messaging application Signal, to successfully challenge a gag order on a criminal subpoena — though the company had almost no information to turn over, based on the way the application is designed.
"If the gag is really gone in its entirety — maybe it's not — it's hard to imagine why they couldn't publish a redacted version of it that would still protect the target's privacy," Kaufman continued. "From here it seems like a policy choice not to release it, and a strange one at that."