When news broke that internet giants such as Google, Apple, Microsoft, Yahoo, and Facebook were sharing users’ private information with the National Security Agency’s PRISM program, many of these companies began by denying any direct involvement with the government. As the story has developed it has become clear that these tech companies have long been feeding the NSA, even once physically handing a hard drive to investigators.
Now in damage-control mode, Google, Microsoft, and Twitter are attempting to disclose the government information requests they received in order to reassure customers that they don’t give the government “unfettered access.” Even the NSA is trying to up its efforts at transparency. But many opponents of the PRISM program are asking why Google didn’t step up earlier and just deny the NSA access to the information.
However ridiculous it may sound, these companies could in fact have refused to comply with the secret government orders — but it wouldn’t have been fun. Refusal to comply with any federal court places someone in contempt, and in this case refusal to carry out the secret order would put company executives in a legally ill-defined area of secret contempt, secret fines, and even secret jail time.
It is unclear how a secret court such as FISA would conduct a contempt hearing since, after all, the court’s work is entirely confidential. How could one of these companies appeal a secret court ruling? And how could the court secretly fine or arrest a major tech executive?
Indiana and American University law professors David Fidler and Stephen Vladeck explain that in order to keep a trial secret, any contempt court could operate under seal, i.e. no records of the trial would leave the courthouse, and a jury would not be necessary since a judge can unilaterally hold parties in contempt.
It is likely though that before outright refusal, the order would be challenged in the Foreign Intelligence Review Court and possibly the federal courts, where the trial would again be under seal. Any appeals case would likely be pretty lacking in substance since the NSA likely could not release much of the evidence used in FISA court.
So what would end up happening? Fidler and Vladeck conclude that the most likely outcome would be a hefty fine that was manageable enough to avoid an appeal. Although it would be tough for the company to justify these costs in public fillings, it wouldn’t be the first time they’d used legalese to cloak spending.
One thing we cannot forget, however, is that companies may have already challenged the orders, but of course, the secrecy of the court’s proceedings makes it impossible to know whether any company has mounted such a challenge.
If the government does grant Google the right to release Foreign Intelligence Surveillance Act (FISA) requests, Google has ensured users that they will appear in the Transparency Report package, an annual release of non-secret government requests. Google is one of the few tech companies to release that information, and with reasons. Google receives an astounding number of requests annually.
It appears as though unless these companies are allowed to disclose the government information requests, we end with many more questions than we began with. What we do know is that Google is doing the right thing by leading the push for more transparency.