GOOGLE AND THE N.S.A. SPYING APPARATUS
“[I]t’s high time that governments get together and decide some rules around this,” David Drummond, Google’s top lawyer, said in an online Q. & A. with the Guardian on Wednesday, which addressed the company’s challenge to the blanket secrecy that surrounds the U.S. government’s domestic-spying apparatus. “It’s really important that all of us give close scrutiny to any laws that give governments increased power to sift through user data.” In a motion filed earlier this week with the Foreign Intelligence Surveillance Act court, which approves and denies (mostly approves) the government’s demands for personal information from telephone and Internet companies for national-security purposes, Google argued that it had the right, under the First Amendment, to publish details of the court orders it receives. As well as filing a legal motion in the FISA court, which operates according to its own rules, Google has petitioned the Justice Department for permission to disclose the number of FISA orders it receives, and how many personal accounts are covered under those orders.
Until now, Google’s legal motion hasn’t received much attention. That’s partly because it was filed on the same day that the Obama Administration rolled out the director of the National Security Agency and the deputy head of the Federal Bureau of Investigation todefend its electronic surveillance programs, and to make largely unsubstantiated claims that the programs had helped to prevent more than fifty “potential terrorist events,” including a possible attack on the New York Stock Exchange. But there’s also some justifiable skepticism about what Google’s up to. Until Edward Snowden came forward, the Silicon Valley giant had been complying with the FISA court orders for years, if not quite in the way that one of Snowden’s documents suggested. (Rather than allowing the N.S.A. to log onto its servers directly and look at whatever it wanted, the company appears to have set up a secure facility—a sort of online mailbox—where it routinely deposited the information requested by the government.)
So is this anything more than a face-saving stunt? I’m as suspicious of Google’s motives as anybody. Like numerous other Internet companies, it has frequently adopted a cavalier attitude toward privacy concerns, as exemplified by its former C.E.O. Eric Schmidt’sinfamous statement from 2010: “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.” More recently, as one of the questioners in the Guardian Q. & A. pointed out, the company has been lobbying heavilyagainst the introduction of a law in the European Union that would help protect consumers’ privacy from being invaded by companies like Google.
But just because Google’s legal challenge to the FISA court is patently a self-interested maneuver, that doesn’t mean it is insignificant. In fact, I would argue that makes it moreimportant. What we’ve learned in the past couple of weeks is that the domestic-spying edifice depends on the active coöperation of corporate America. In challenging a key aspect of this system—its secrecy—Google has made clear that this coöperation will no longer be unqualified. And that represents a significant crack in the edifice.
To be sure, Prism and other electronic-surveillance programs will continue unabated. Google isn’t challenging the N.S.A.’s right to demand e-mails and other digital data from the personal accounts of overseas suspects and Americans caught up in intelligence investigations. But in directly challenging the FISA court, and bringing up the First Amendment, it has taken an important step toward dragging the shadowy body into the open, which is where it belongs.
Under the Foreign Surveillance Intelligence Act and the Patriot Act, companies such as Google and Verizon are forbidden from releasing any information about FISA court orders they receive, including their very existence. This type of blanket gag order has no place in any properly functioning democracy. Google’s lawyers—by bringing up the First Amendment, and the protections for free speech it contains, in their court filing—are essentially making the same argument.
The company already publishes the over-all number of so-called National Security Letters it receives from the authorities demanding information of various types, but it isn’t allowed to break out any details about the requests from the FISA courts. If its challenge succeeds and Google is allowed to publish information about how many orders it receives and how many people are having their data swept up, we might be able to learn a good deal about the scope of Prism and other N.S.A. programs without compromising individual investigations.
For pushing back this far, which is more than other tech companies, like Microsoft and Yahoo, have done, Google deserves some credit, even if its motives are impure. “We’re not in the business of lying and we’re absolutely telling the truth about all of this,” Drummond replied to a questioner who asked why the company should be believed. “Our business depends on the trust of our users.” That’s true, and, given how the spying apparatus depends on companies like Google, it offers some hope that we can make a bit of progress.
Photograph by Connie Zhou/Google/AP.
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