Microsoft and Google have not been able to convince the Department of Justice (DOJ) to let the tech companies reveal how many Foreign Intelligence Surveillance Act (FISA) orders they must comply with.

Noting that "there are many days when Microsoft and Google stand apart," Microsoft General Counsel Brad Smith today wrote that the companies are united in trying to provide more information about orders that allow the government to spy on the companies' customers:

We both remain concerned with the Government’s continued unwillingness to permit us to publish sufficient data relating to Foreign Intelligence Surveillance Act (FISA) orders. Each of our companies filed suit in June to address this issue. We believe we have a clear right under the US Constitution to share more information with the public. The purpose of our litigation is to uphold this right so that we can disclose additional data. On six occasions in recent weeks we agreed with the Department of Justice to extend the Government’s deadline to reply to these lawsuits. We hoped that these discussions would lead to an agreement acceptable to all. While we appreciate the good faith and earnest efforts by the capable Government lawyers with whom we negotiated, we are disappointed that these negotiations ended in failure.

While Smith noted the US government has said it would start "publishing the total number of national security requests for customer data for the past 12 months and do so going forward once a year," he wrote that Microsoft and Google believe the public is constitutionally entitled to more than that.

"For example, we believe it is vital to publish information that clearly shows the number of national security demands for user content, such as the text of an e-mail," Smith wrote. "These figures should be published in a form that is distinct from the number of demands that capture only metadata such as the subscriber information associated with a particular e-mail address. We believe it’s possible to publish these figures in a manner that avoids putting security at risk. And unless this type of information is made public, any discussion of government practices and service provider obligations will remain incomplete."

Since the negotiations failed, Smith wrote that "we will move forward with litigation in the hope that the courts will uphold our right to speak more freely."

A Google spokesperson said today that “while the government’s decision to publish aggregate information about certain national security requests is a step in the right direction, we believe there is still too much secrecy around these requests and that more openness is needed," according to the Wall Street Journal.

The Center for Democracy and Technology, an advocacy group, said today that the DOJ is expected to file a brief in front of the Foreign Intelligence Surveillance Court opposing Microsoft's and Google's requests to publish numerical information about FISA orders.

The advocacy group said it "is extremely disappointed by the [Obama] Administration's continued opposition to meaningful transparency reporting by US Internet companies."