Colluding with the government to secretly hand over law-abiding citizens’ private data might be bad for business in the long run, so many U.S-based tech giants are beginning to defy Federal law enforcement whenever they’re requested to do just that.
At least, that’s what The Washington Post reported late last week.
But in a world in which Edward Snowden continually reminds Americans that anyone involved in government surveillance can still find out everything you do online, “from a Federal judge to the President of the United States” as long as they’ve got your email address, it’s hard to gauge just how significant Big Data’s self-imposed nullification of government demands really is.
At the very least, it’s something. Tech companies are still complying with subpoenas that demand submitting bulk data to various law enforcement agencies, but many have begun insisting that individuals targeted in the subpoenas be informed that they’re being spied on. There’s still an enormous legal catch, though: any data requests that emanate either from the secret Foreign Intelligence Surveillance Court or from a National Security Letter still carry a mandatory gag order.
Yet, the Post reports the scale of the tech companies’ defiance is sufficient to make the government’s unilateral enforcement of its piecemeal demands for secret data mining nearly impossible:
This increasingly defiant industry stand is giving some of the tens of thousands of Americans whose Internet data gets swept into criminal investigations each year the opportunity to fight in court to prevent disclosures.
…Apple, Microsoft, Facebook and Google all are updating their policies to expand routine notification of users about government data seizures, unless specifically gagged by a judge or other legal authority, officials at all four companies said. Yahoo announced similar changes in July.
As this position becomes uniform across the industry, U.S. tech companies will ignore the instructions stamped on the fronts of subpoenas urging them not to alert subjects about data requests, industry lawyers say. Companies that already routinely notify users have found that investigators often drop data demands to avoid having suspects learn of inquiries.
…The changing legal standards of technology companies most directly affect federal, state and local criminal investigators, who have found that companies increasingly balk at data requests once considered routine.
To counter the changes, the U.S. Department of Justice is trying to bring the old ways back – although the only tool it’s yet wielded for doing so, remarkably, is public relations. The DOJ issued a statement criticizing the tech industry’s policy shift for “endangering life, risking destruction of evidence, or allowing suspects to flee or intimidate witnesses,” alleging that secrecy in surveillance is the very basis for a successful investigation.
The tech companies don’t have a problem with that logic, so long as it’s applied to individual suspects instead of to indiscriminate user groups that might – or might not – contain an individual involved in some unknown criminal endeavor.
“The intent is to make sure it’s not a rubber stamp. That way we’re not releasing customer information without due process,” said one industry representative.
Due process flowing from the private sector, to protect Americans from a government that flouts Constitutional limits on searches and seizures…it’s a novel concept, and strangely indicative of just how dramatically times have changed.
Note from the Editor: Under the Obama Administration, the NSA, the IRS, and the State and Justice departments are blatantly stepping on Americans’ privacy—and these are just the breaches we’re aware of. I’ve arranged for readers to get a free copy of The Ultimate Privacy Guide so you can be protected from any form of surveillance by anyone—government, corporate or criminal. Click here for your free copies.