Microsoft, Google plan to sue over surveillance disclosure

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Alina Selyukh Reuters

Aug. 30, 2013 at 7:01 PM ET

AFP/Getty Images file

"While we appreciate the good faith and earnest efforts by the capable government lawyers with whom we negotiated, we are disappointed that these negotiations ended in failure," said Microsoft general counsel legal Brad Smith, shown in a file photo.

WASHINGTON ? The U.S. Department of Justice's talks with Microsoft and Google have hit a wall as the government pushes back at the tech companies' demand for the ability to disclose the now-secret data requests they receive. Both companies may sue in order to "speak more freely."

Microsoft's general counsel, Brad Smith, on Friday described as a failure the outcome of the companies' recent negotiations with the government over the disclosure of Foreign Intelligence Surveillance Act (FISA) court orders the companies receive.?

"While we appreciate the good faith and earnest efforts by the capable government lawyers with whom we negotiated, we are disappointed that these negotiations ended in failure," he said.?

In a blog post, Smith wrote that Microsoft and Google plan to sue over the matter:

Over the past several weeks Microsoft and Google have pursued these talks in consultation with others across the technology sector. 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. And with a growing discussion on Capitol Hill, we hope Congress will continue to press for the right of technology companies to disclose relevant information in an appropriate way.

The director of National Intelligence, James Clapper, on Thursday pledged to disclose aggregate numbers of FISA orders issued to tech and telecom companies, but the intelligence community has not agreed to allow particular companies to make such disclosures.?

"FISA and national security letters are an important part of our effort to keep the nation and its citizens safe, and disclosing more detailed information about how they are used and to whom they are directed can obviously help our enemies avoid detection," Clapper said in a statement.?

The tech sector has been pushing for greater transparency of government data requests as companies seek to shake off the concerns about their involvement in vast secret U.S. surveillance programs revealed by former spy contractor Edward Snowden.?

"Google's reputation and business has been harmed by the false or misleading reports in the media, and Google's users are concerned by the allegations. Google must respond to such claims with more than generalities," the company said in a June motion filed with the FISA court, alongside a similar Microsoft filing.?

The Department of Justice on Friday was due to file in a secret surveillance court its response to Microsoft and Google's motions filed in the wake of Snowden's leaks.?

Filings in the court are classified, and the department's response was not published on the court's website late on Friday. A department spokesperson declined comment.?

"We are deeply disappointed that despite months of negotiations and the efforts of many companies, the government has not yet permitted our industry to release more detailed and granular information about those requests," the general counsel for Facebook, Colin Stretch, said in a statement.?

The tech companies and privacy advocates tepidly welcomed Clapper's pledge for annual reports on numbers of data requests to Internet and phone companies, but expressed disappointment at stopping short of more detailed breakdowns.?

"The new data that the government plans to publish is not nearly enough to justify the government's continued attempts to gag companies like Google and Microsoft and prevent them from engaging in meaningful transparency reporting of their own," said Kevin Bankston, director of free expression at privacy group Center for Democracy and Technology.?

A Google spokesperson called Clapper's announcement "a step in the right direction," while adding, "There is still too much secrecy around these requests and that more openness is needed."?

Additional reporting by Joseph Menn and David Ingram.

Copyright 2013 Thomson Reuters.

Source: http://feeds.nbcnews.com/c/35002/f/663286/s/309cbf9a/sc/21/l/0L0Snbcnews0N0Ctechnology0Cgoogle0Emicrosoft0Eefforts0Estalled0Erelease0Egovernment0Edata0Erequests0E8C110A4550A8/story01.htm

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