In a blog entry by Microsoft General Counsel & Executive Vice President, Legal & Corporate Affairs Brad Smith, the company explained how negotiations with the government over permission "…to publish sufficient data relating to Foreign Intelligence Surveillance Act (FISA) orders" have faltered. Both Microsoft and Google will proceed with litigation to seek permission from the FISA court.

Ever since the public disclosure of the NSA's surveillance programs by former contractor Edward Snowden, Microsoft, Google and many other companies have called on the government to allow them to disclose the extent of their cooperation so that customers and foreign governments can make informed decisions about the trustworthiness of the companies' services.

Smith says in the blog that both Microsoft and Google filed suit in June for permission to disclose the information, and they believe they have the clear constitutional right to do so. On 6 occasions the government has asked for extensions from the court before replying to the suit.

According to this order from the FISA court, 5PM today (presumably eastern time, as that is the time of the court's seat) is the current deadline for the current extension. Smith says that Microsoft and Google won't agree to any more extensions.

In part because of the secrecy under which it operates, the court has a reputation as a rubber stamp for government requests, although both the court and government dispute this characterization. Finding for Microsoft and Google, not giving the government the benefit of any doubt, could be a way for the court to assert its independence in a public way.

Today may also be a good day for the government to cave on the Microsoft/Google petition. It's standard procedure, when you want to bury news, to release it on a Friday. Releasing it on the Friday before Labor Day buries it that much deeper.

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