Researching Google’s Motion For Declaratory Judgment

In September, Google filed a Motion for Declaratory Judgment, seeking to publish aggregate information about Foreign Intelligence Surveillance Act (FISA) orders that may or may not have been issued against Google. Google has suffered bad press due to allegedly cooperating with the National Security Agency (NSA) to reveal data sent by users of Google’s services.

Users of Google’s services have been upset that the NSA may have viewed data they consider private. Google’s motion hopes to dispel this anger by showing how few instances of compelled data exposure have actually occurred. Google cannot release this information as they may have also been served with a gag order forbidding them from ever telling anyone about the FISA search warrant except their lawyer.

Soon after Google’s filing, Microsoft, Yahoo, LinkedIn and Facebook each filed similar, separate motions seeking to publish similar information. All of these motions were filed in the U.S. Foreign Intelligence Surveillance Court (FISC).

In arguing the motion, Google relies on only four cases:

Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976)

Connick v. Myers, 461 U.S. 138 (1983)

Press-Enterprise Co v. Superior Court, 478 U.S. 1 (1986)

Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008)

In researching the strength of Google’s motion, I first sought out the cases cited. Nothing replaces reading the case law cited in motions.

The Supreme Court cases are available from FindLaw. These will allow you to read the full text of these cases.

The last case, Mukasey, is not a Supreme Court Case, but a case heard by the 2nd Circuit’s Court of Appeals. A PDF copy of the opinion is available from the Court’s website.

Next, I began looking at tools that help determine the validity of the cases being cited. Even Supreme Court cases may have cases that distinguish their scope. Every lawyer is familiar with KeyCite from Westlaw and Shepards from Lexis-Nexis. However, a new class of tools is being built that use crowd-sourcing and automation to provide similar results. These tools allow a lawyer to see what other cases may be on point for this issue.

For example, Mootus has a page devoted to arguing whether recipients of FISA orders have a First Amendment right to publish aggregate statistics regarding their receipt of such orders. Two of the four cases, Mukasey and Nebraska Press Assn., have both been offered as potentially dispositive. Members of the Mootus service can vote if they feel these cases are on point. Mukasey leads the pack, currently. More users of Mootus have voted for this case above all others. Nebraska Press Assn. was the only other case from the Google motion that appeared in Mootus’ crowd-sourced assessment. Nebraska Press Assn. establishes the limits on “prior restraints on speech,” that Google is seeking to use in their motion.

Fastcase has an Authority Check Report on Mukasey that seems to support the opinion of Mootus’ users. Here you can see the report:

This report shows that even though Mukasey is a recent case, appellate courts are already using it. Mukasey has helped established that while the U.S. government cannot impose a gag order, like the one allegedly imposed on Google, without initiating judicial review at some point. None of the cases citing Mukasey have been reviewed by the Supreme Court, leaving this opinion untested at the highest level.

Can Google prevail in obtaining permission to disclose information relating to FISA search warrants?  That remains to be seen.

A Joint Motion for Stay of Proceedings was filed by the U.S. Department of Justice (DOJ) and all of the major parties involved. Citing the lack of budget appropriations from Congress, the DOJ is prohibited from working on any non-emergency cases. This includes cases before FISC. The Court has granted this motion, with no hearing date set. The October 21 deadline for Google’s response was also stayed until the DOJ attorneys are permitted to resume their usual civil litigation functions.

We do know some of the approach the DOJ will take in opposing Google’s motion. Their response is available at the FISC website. In this partially redacted document, the DOJ cites 31 cases. This may suggest that the Government’s position has the weight of case law behind it. Readers of this motion are welcome to join programs like Mootus or Casetext, to begin discussion and annotation of the cases and their position used by the government on this motion.

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