In a defeat for privacy advocates and a warning to those worried about the encroaching ability of federal law enforcement agencies to spy on electronic communications without search warrants or judicial oversight, a judge has ruled against Google Inc. saying the internet giant must hand over customer data when requested by the FBI.
In defense of privacy, Google had argued that the government's issuance of so-called "national security letters" was both "unconstitutional and unnecessary."
The letters require internet service providers (ISPs) or other telecommunications companies to hand over customer information, but go further by stipulating, under threat of prosecution, that the companies cannot inform their customers that the information is being sought or may be under surveillance.
As the Associated Press reports:
The letters are used to collect unlimited kinds of sensitive, private information, such as financial and phone records and have prompted complaints of government privacy violations in the name of national security. Many of Google's services, including its dominant search engine and the popular Gmail application, have become daily habits for millions of people.
In a ruling written May 20 and obtained Friday, U.S. District Court Judge Susan Illston ordered Google to comply with the FBI's demands.
The issue is not nearly resolved, however, as the judge did put a stay on her final decision by acknowledging that the 9th Circuit Court of Appeals will be tackling the issue of the letters in an upcoming case.
Kurt Opsah, an attorney with the Electronic Frontier Foundation, which has filed a separate suit against the government's use of such letters, was disappointed that Illston seems to be sending mixed messages on the authority or legality of the government's tactics. It was Illston who ruled on the suit brought by EFF in which she found, as the AP reports, "that the FBI's demand that recipients refrain from telling anyone – including customers – that they had received the letters was a violation of free speech rights."
"We are disappointed that the same judge who declared these letters unconstitutional is now requiring compliance with them," Opsah said on Friday.
The litigation taking place behind closed doors in Illston's courtroom -- a closed-to-the-public hearing was held on May 10 -- could set new ground rules curbing the FBI's warrantless access to information that Internet and other companies hold on behalf of their users. The FBI issued 192,499 of the demands from 2003 to 2006, and 97 percent of NSLs include a mandatory gag order.
It wasn't a complete win for the Justice Department, however: Illston all but invited Google to try again, stressing that the company has only raised broad arguments, not ones "specific to the 19 NSLs at issue." She also reserved judgment on two of the 19 NSLs, saying she wanted the government to "provide further information" prior to making a decision.
NSLs are controversial because they allow FBI officials to send secret requests to Web and telecommunications companies requesting "name, address, length of service," and other account information about users as long as it's relevant to a national security investigation. No court approval is required, and disclosing the existence of the FBI's secret requests is not permitted.