October 2, 2013 | By Nate Cardozo

Transparent Is The New Black

"Secrecy in government is fundamentally anti-democratic...Open debate and discussion of public issues are vital to our national health. On public questions there should be 'uninhibited, robust, and wide-open' debate." —New York Times Co. v. U.S., 403 U.S. 713, 724 (1971) (Douglas, J., concurring).

Last week, cloud storage provider Dropbox did the right thing by joining Google, Microsoft, Yahoo, Facebook, and LinkedIn in their consolidated suit before the Foreign Intelligence Surveillance Court ("FISA Court") demanding permission to publish—for the first time—complete statistics about the US government's national security requests. Dropbox opened its amicus brief with the above quote from Supreme Court Justice William O. Douglas. While Justice Douglas wrote those lines more than forty years ago in response to the Nixon Administration's attempt to suppress the publication of the Pentagon Papers, its relevance remains undiminished today. The government is again attempting to prevent the publication of truthful, albeit potentially embarrassing, information regarding the activities of its intelligence agencies.

"[W]e can, and must, be more transparent. So I've directed the intelligence community to make public as much information about these programs as possible." —President Barack Obama, Press Conference, August 9, 2013

With the President's statement in mind, and in the face of the growing industry consensus that transparency is not just good public relations, but also mandated by the First Amendment, we hoped that the government would finally concede the obvious—companies have a right to tell their users the truth about how often the government comes knocking.

The government's long-delayed response to the companies' motions was made public today. Unfortunately, the Department of Justice (DOJ) doesn't seem to have taken the President's direction to heart. Indeed, the DOJ's position is unchanged, writing: "Although the Government is seeking to make public as much information about these activities as the national security interests of the United States will permit, in the FISA context, there is an unquestioned tradition of secrecy, based on the vitally important need to protect national security."

The Government's unquestioned tradition of secrecy surrounding FISA requests is no answer to the question before the court; what possible justification can there be to prevent companies from reporting the mere number of national security requests they receive? The Government's filing suggests that those numbers will alert our adversaries to the NSA's surveillance methods as an additional reason to keep them secret. But that argument is specious at best. NSA surveillance has been front-page news since June.

On Monday, EFF joined a broad coalition of technology companies (including the six before the FISA Court), nonprofits, and advocacy organizations to call on Congress to pass a pair of bills intended to clarify that companies have the right to publish truthful statistics about the Government's demands for their users' data. Our collective message is clear: The right to publish truthful information about the Government's activities goes to the very core of the First Amendment. We hope that the FISA Court, and Congress, agree.


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