Case: In re Motion for Declaratory Judgment of a First Amendment Right to Publish Aggregate Information about FISA Orders [FISA Docket Misc. 13-03 (Google); Misc. 13-04 (Microsoft); Misc. 13-05 (Yahoo!); Misc. 13-06 (Facebook); Misc. 13-07 (LinkedIn)]

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In June 2013, several major newspapers, including the Guardian (London) and the Washington Post, reported on the National Security Agency's intelligence collection programs based on the classified documents leaked by former NSA contractor Edward Snowden. Both the Guardian and the Post included reports that U.S. internet companies were allowing the NSA to tap directly into their central servers.

Several of the companies complained that the newspaper reports mischaracterized their relationship with the NSA. Those companies asserted that the NSA did not have any direct access to servers, but rather obtained access to communications based on both court orders entered under one of a variety of Foreign Intelligence Surveillance Act provisions, and administrative subpoenas issued by the FBI, also known as National Security Letters (NSLs). On June 11, 2013, Google requested the Department of Justice and the FBI permit Google to publish aggregate numbers regarding the receipt of NSLs from the NSA and FBI. The request was refused.

Several providers filed suit against the United States in the FISA Court, seeking a declaratory judgment permitting them to publish aggregate data about orders or directives they received under FISA or the FISA Amendments Act (FAA). On June 18, 2013, Google moved for declaratory judgment under the First Amendment to publish the number of FISA requests it received and the number of users or accounts encompassed within such requests. On June 19, Microsoft followed suit and moved for declaratory judgment. As similar requests from providers rolled in, the FISC amended briefing schedules liberally. Meanwhile, numerous amici curiae filed briefs in the case, including numerous United States Congressional Representatives, several First Amendment organizations, and news corporations.

On September 9, 2013, Google and Microsoft filed amended motions for declaratory judgment in Dockets Misc. 13-03 and 13-04, respectively. Simultaneously, Yahoo! and Facebook filed motions for declaratory judgment in Dockets Misc. 13-05 and 13-06, respectively. Given the overlap in issues, the court consolidated the cases. Shortly thereafter on September 17, LinkedIn Corporation filed a motion for declaratory judgment under Docket Misc. 13-07, which the court also consolidated with the other dockets. Dropbox and Apple filed amicus briefs.

On September 30, 2013, the government filed a response, arguing that the transparency the providers were requesting would be adverse to the security interests of the United States, informing terrorist organizations and others where the U.S. intelligence agencies were focusing their efforts.

On the joint motion of the parties, the court then issued a stay of the proceedings until late October 2013, due to the shutdown of the federal government because Congress had failed to pass an appropriations bill. The petitioner-providers moved to strike the ex parte part of the response, in which the government had submitted classified information for the court to review in camera. Thereafter, the parties moved for a partial stay until late December 2013.

On January 27, 2014, the United States informed the court that it would permit the petitioners to publish the aggregate data at issue, and the Director of National Intelligence declassified the aggregate data. The parties stipulated to the dismissal of the actions without prejudice.