Taking Stock of Improvements to Transparency Around National Security Demands

Today, we're updating our Transparency Report concerning government demands for user information to include data from the first half of 2015. In the US, we have seen a 20% increase in requests in criminal investigations and a 49% increase in the number of individual accounts specified in those requests since the last reporting period. Compared to the same period last year, we saw a 4% decrease in requests, but a 45% increase in the number of individual accounts specified.

The release of our Transparency Report today is an opportunity to take stock of the hard-fought battle to provide more transparency into the national security demands that Google and other companies receive. There's still plenty of work to be done, but we've taken some significant steps forward.

In March of 2013, after about a year of discussion with the US government, Google began publishing statistics about receipt of National Security Letters (NSLs). This was the first time any company had reported on that sort of legal process.

Later that year, in an effort the expand the right to report on other types of national security demands, Google filed a lawsuit before the Foreign Intelligence Surveillance Court asserting a First Amendment right to publish aggregate information about national security demands that we receive. At the time, Google could not even acknowledge receipt of any FISA demands, which meant we could not provide any transparency around the volume and scope of national security demands we receive.

As a result of the litigation, in 2014, Google and other companies earned the right to report the volume of national security demands in ranges of 1,000 (e.g. 0-999). The large ranges, however, limited public visibility into the scope of government surveillance, with no appreciable benefit to national security.

Earlier this year, Congress passed the USA Freedom Act, which cut the range in half and provides for other reporting options. Google and other companies in the Reform Government Surveillance coalition fought for the inclusion of these transparency provisions, which provide greater insight into the national security demands that we receive. As a result, starting today our Transparency Report provides more granularity about the national security demands that we receive going back to our first reporting period in 2009. We now make these disclosures in ranges of 500 (e.g. 0-499) instead of ranges of 1,000.

The USA Freedom Act also increases transparency around the issuance of NSLs and use of non-disclosure clauses. In the past, gag restrictions in NSLs could be indefinite, effectively preventing recipients from ever speaking about the existence of the NSLs or their contents and depriving the public of valuable information that can inform the broader policy debate about how to reform relevant legal authorities. Google has challenged the constitutionality of NSLs and non-disclosure obligations for precisely those reasons.

Under the USA Freedom Act, the Department of Justice is now required to regularly review past disclosure restrictions in NSLs and lift those that are no longer needed. Recently, the Department of Justice announced new procedures to implement this requirement, which should ensure that recipients of NSLs are not indefinitely gagged from notifying users and otherwise speaking about their experiences.

The current framework under the USA Freedom Act is far from perfect. As we underscored in testimony before the Senate Judiciary Committee, we continue to believe there are important First Amendment and transparency equities in making more granular disclosures. There should be little doubt that companies can make such disclosures without compromising national security. Indeed, transparency is necessary to bring legitimacy to laws that otherwise operate concealed from the public. As we take stock of the progress made toward providing greater transparency, we should also recognize that further reforms are necessary to promote better oversight over, and insight into, the implementation of government surveillance laws.