I stumbled across Tech firms’ release of PRISM data will harm security — new U.S. and FBI court filings by Jeff John Roberts today.
From the post:
The Department of Justice, in long-awaited court filings that have just been released, urged America’s secret spy court to reject a plea by five major tech companies to disclose data about how often the government asks for user information under a controversial surveillance program aimed at foreign suspects.
The filings, which appeared on Wednesday, claimed that the tech companies – Google, Microsoft, Facebook, LinkedIn and Yahoo — do not have a First Amendment right to disclose how many Foreign Intelligence Surveillance Act requests they receive.
“Adversaries may alter their behavior by switching to service that the Government is not intercepting,” said the filings, which are heavily blacked out and cite Edward Snowden, a former NSA contractor. Snowden has caused an ongoing stir by leaking documents about a U.S. government program known as PRISM that vacuums up meta-data from the technology firms.
I thought we had settled the First Amendment for corporations back in Citizens United v. FEC.
Justice Kennedy, writing for the majority said:
The censorship we now confront is vast in its reach. The Government has “muffle[d] the voices that best represent the most significant segments of the economy.” Mc Connell, supra, at 257–258 (opinion of Scalia, J.). And “the electorate [has been] deprived of information, knowledge and opinion vital to its function.” CIO, 335 U. S., at 144 (Rutledge, J., concurring in result). By suppressing the speech of manifold corporations, both for-profit and nonprofit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of “destroying the liberty” of some factions is “worse than the disease.” The Federalist No. 10, p. 130 (B. Wright ed. 1961) (J. Madison). Factions should be checked by permitting them all to speak, see ibid., and by entrusting the people to judge what is true and what is false.
The purpose and effect of this law is to prevent corporations, including small and nonprofit corporations, from presenting both facts and opinions to the public. This makes Austin ’s antidistortion rationale all the more an aberration. “[T]he
First Amendment protects the right of corporations to petition legislative and administrative bodies.” Bellotti, 435 U. S., at 792, n. 31 (citing California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508, 510–511 (1972); Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127, 137–138 (1961)). Corporate executives and employees counsel Members of Congress and Presidential administrations on many issues, as a matter of routine and often in private. An amici brief filed on behalf of Montana and 25 other States notes that lobbying and corporate communications with elected officials occur on a regular basis. Brief for State of Montana et al. as Amici Curiae 19. When that phenomenon is coupled with §441b, the result is that smaller or nonprofit corporations cannot raise a voice to object when other corporations, including those with vast wealth, are cooperating with the Government. That cooperation may sometimes be voluntary, or it may be at the demand of a Government official who uses his or her authority, influence, and power to threaten corporations to support the Government’s policies. Those kinds of interactions are often unknown and unseen. The speech that §441b forbids, though, is public, and all can judge its content and purpose. References to massive corporate treasuries should not mask the real operation of this law. Rhetoric ought not obscure reality.
I admit that Citizens United v. FEC was about corporations buying elections but Justice Department censorship in this case is even worse.
Censorship in this case strikes at trust in products and services from: Google, Microsoft, Facebook, LinkedIn, Yahoo and Dropbox.
And it prevents consumers from making their own choices about who or what to trust.
Google, Microsoft, Facebook, LinkedIn, Yahoo and Dropbox should publish all the details of FISA requests.
Trust your customers/citizens to make the right choice.
PS: If Fortune 50 companies don’t have free speech, what do you think you have?