Microsoft will move forward with litigation over NSA data collection

Microsoft general counsel Brad Smith said on Friday that the company would move ahead with its lawsuit against the U.S. government, seeking permission to release more information on demands Microsoft receives from the National Security Agency (NSA) and others for Internet user data.

In a blog post, Smith dismissed as inadequate the Obama Administration’s announcement late on Thursday that it would begin publishing, on an annual basis, the total number of national security requests for customer data made to Internet and telecom service providers.

“The Government’s decision represents a good start. But the public deserves and the Constitution guarantees more than this first step,” Smith said.

He noted that it is vital for companies such as Microsoft to be able to publish data that clearly distinguishes between government requests for actual user content and government requests for metadata like the subscriber information related to a particular email address.

Such information can be published in a manner that poses no risk to national security. Any discussion on service provider obligations and government data collection practices under the anti-terror Foreign Intelligence Surveillance Act (FISA) would remain incomplete unless this type of information is publicly released, Smith said.

However, in a blog post announcing intention to release data on the number of NSA requests each year, the Director of National Intelligence, James Clapper, made clear that this is as much information the government is willing to provide for now.

“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.

Both Google and Microsoft sued the government in June over the issue. Both companies are among the several major Internet players from whom the NSA and other intelligence agencies are gathering large volumes of data on Internet users under FISA orders.

Under the anti-terror statute, the companies are currently prohibited from disclosing any details about the information they are required to provide, or even how many requests they receive each year from the NSA and other U.S. intelligence agencies.

Microsoft and others have vigorously argued that their inability to disclose such information is hurting them and had resulted in all sorts of misperceptions about the government having direct access to their systems. Their concerns are also likely being fueled by recent warnings that the NSA’s data collection activities could cost U.S. cloud companies billions of dollars in business going forward.

In his blog post, Smith noted that since June the U.S. Department of Justice has filed six extensions for time to respond to the complaints aired by Microsoft and Google in their lawsuits. Microsoft agreed to those extensions, he said.

Last month, the company asked U.S. Attorney General Eric Holder to personally help Microsoft and others share more complete information on how they handle national security requests for customer data.

“We hoped that these discussions would lead to an agreement acceptable to all,” Smith wrote. “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.”

As a result, the company will “move forward with litigation in the hope that the courts will uphold our right to speak more freely,” Smith wrote. “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.”