Microsoft and Google Challenge NSA Gag Orders in Federal Court

Microsoft and Google filed federal lawsuits challenging government gag orders that prohibited them from disclosing details about Foreign Intelligence Surveillance Act (FISA) requests and National Security Letters (NSLs) they receive for customer data. The companies argued these blanket nondisclosure orders violated their First Amendment rights to inform users about government surveillance.

Microsoft General Counsel Brad Smith announced in August 2013 that the company would move forward with litigation after negotiations with the Department of Justice failed to reach agreement on meaningful transparency. The lawsuit specifically challenged the government’s position that tech companies could not publish even aggregate numbers about surveillance demands, such as the total number of FISA orders received or the number of customer accounts affected.

Google joined the legal challenge, filing separate litigation asserting its constitutional right to speak about the volume and nature of government data requests. Both companies argued that the sweeping gag orders prevented them from correcting false public perceptions about their cooperation with surveillance programs revealed by Edward Snowden. The companies contended they had a First Amendment right to publish accurate information about government demands, particularly when the government itself was publicly discussing surveillance programs.

In late 2013, Microsoft also challenged a nondisclosure order attached to a National Security Letter demanding information about an enterprise customer account. Microsoft argued the indefinite gag order was unconstitutional. The government subsequently withdrew the NSL rather than defend the gag order in court, tacitly acknowledging the legal weakness of its position.

The lawsuits eventually resulted in limited government concessions allowing companies to publish ranges of FISA requests in bands of 1,000 with a six-month delay. While far from the complete transparency the companies sought, the litigation established important precedents: that tech companies could legally challenge surveillance gag orders, that automatic nondisclosure violated First Amendment rights, and that public pressure could force partial transparency even in the secret world of national security surveillance.

The legal battles marked a turning point where major tech companies moved from quiet compliance with surveillance demands to active resistance and public advocacy for user privacy rights, fundamentally changing the relationship between Silicon Valley and the intelligence community.