Apple Seeks Freedom To Disclose Gov Data Demands

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Apple, which set the standard for obsessive secrecy under former CEO Steve Jobs, has embraced transparency, at least insofar as it pertains to customer trust. The company on Tuesday published its first transparency report, following in the footsteps of Google, Facebook, LinkedIn, Microsoft and Yahoo as they push back against a legal regime that allows the government to obtain customer data without disclosure.

Asserting that its customers have the right to understand how their data is handled, Apple attempts to differentiate itself from the likes of Google by stating that it has "no interest in amassing personal information about our customers" and that it doesn't store location data, Maps searches or Siri requests in any identifiable form. Presumably, the company isn't counting the 575 million iTunes Accounts it has amassed as personal information.

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Yet Apple is like Google, Facebook, LinkedIn, Microsoft and Yahoo in that it is seeking a legal ruling that will allow it to disclose the aggregate number of government demands for information it receives under Foreign Intelligence Surveillance Act (FISA) orders and National Security Letters. Such demands, as permitted under the Patriot Act, come with a gag order that forbids the recipient from disclosing receipt of the order. The U.S. Department of Justice asserts that the law also forbids recipients of such demands from disclosing how many of these demands have been received.

In its latest legal filing with the U.S. Foreign Intelligence Surveillance Court, Apple argues that the government's broad interpretation of the law is unnecessary for national security and violates its First Amendment right to free speech.

In one particularly forceful passage, Apple's legal counsel punctures the government's claim that it goes "above and beyond what the law requires" to promote transparency.

"It should go without saying that the First Amendment is law," the filing says. "Thus, any disclosures the government has authorized as unnecessary to protect national security are, by definition, not 'above and beyond what the law requires.' They are what the law requires."

Within the limits imposed by the government's expansive restriction on what Apple can reveal, the company's Report on Government Information Requests says that during the first six months of 2013 it received between 1,000 and 2,000 requests in the U.S. covering between 2,000 and 3,000 user accounts from law enforcement agencies. Apple says it complied in somewhere between 0 and 1,000 of these cases.

Outside the country, where legal authorities haven't sought to forbid numerical specificity, the highest number of account information demands Apple received was 127, sought by authorities in Britain.

With regard to demands for information about specific devices, Apple says it received 3,542 in the U.S., covering 8605 devices.

Apple has included in its report a "Warrant Canary," proposed in 2002 and supported by librarians a way to disclose government gag orders indirectly. It's a simple statement of fact that communicates its opposite by its absence.

"Apple has never received an order under Section 215 of the USA Patriot Act," the company states.

If Apple should ever receive such order, it would presumably remove that statement, and the statement's omission would say what the government says Apple cannot say. The company's decision to embrace speech by omission appears to be deliberate -- Apple, in its legal filing, points out the futility of forbidding the acknowledgement of data demands when declarations to the contrary are not barred.