Can tech titans really tackle the NSA over the Constitution?
Eight really big technology companies have asked the Obama administration to protect individual rights, under the Constitution. But how much sway do the Googles and Facebooks of the world have over decisions involving the legality of the NSA’s surveillance programs?
The open letter from the two tech titans, which was signed along with powerhouses like Apple, Yahoo! and Twitter, appeared nationally on Monday. The Group of 8 (which also includes Microsoft, Linkedin and AOL) said in very direct terms – but without naming specific government agencies—that an independent counsel is needed at the Foreign Intelligence Surveillance Act secret court, for starters.
They also want assurances from the National Security Agency and the Obama administration that other nations need to be assured that American surveillance policies will become more open, or else the Internet will be walled off from them.
“The balance in many countries has tipped too far in favor of the state and away from the rights of the individual — rights that are enshrined in our Constitution. This undermines the freedoms we all cherish. It’s time for a change,” the group said in a reference to global Internet surveillance.
“We urge the US to take the lead and make reforms that ensure that government surveillance efforts are clearly restricted by law, proportionate to the risks, transparent and subject to independent oversight,” the letter concluded.
A separate series of statements signed by seven group members (and not Apple) made more claims targeted at the FISC court.
“Reviewing courts should be independent and include an adversarial process, and governments should allow important rulings of law to be made public in a timely manner so that the courts are accountable to an informed citizenry,” the seven companies said.
On the official website for the group, most of the requests are generically linked to “governments,” but two major executives called out the U.S. governments: Mark Zuckerberg and Marissa Mayer.
“The US government should take this opportunity to lead this reform effort and make things right,” said Facebook’s Zuckerberg.
“It is time for the United States government to act to restore the confidence of citizens around the world. Today we join our colleagues in the tech industry calling on the United States Congress to change surveillance laws in order to ensure transparency and accountability for government actions,” said Yahoo!’s Mayer.
It remains to be seen if the companies can influence the Obama administration and Congress on changing the current authorization that allows the NSA to collect bulk data about the digital lives of Americans and others.
Forbes reports that among the eight, Google spends the most money lobbying on Capitol Hill. In 2012, it spent more than $18 million on lobbyists. Combined, Microsoft, Facebook, Yahoo! and Apple spent about another $17 million.
In October, six of the companies, including Google, Facebook and Apple, announced they would support the USA Freedom Act when it comes up for debate in Congress next year.
That bill, sponsored by Representative Jim Sensenbrenner and Senator Patrick Leahy, would reign in NSA bulk collection efforts, require the public reporting of secret court decisions, and establish a special advocate to argue cases in front of the secret court.
But two very compelling business issues seem to be underlying the tech titans’ concerns.
Recent reports from media outlets (that have published documents supplied by Edward Snowden) indicate the former NSA contractor has only released a small sampling of the secrets he has in his possession. More damaging information, especially about the NSA’s activities in Europe, could force the tech companies to incur huge costs to make their products available in overseas markets.
“Governments should not require service providers to locate infrastructure within a country’s borders or operate locally,” the group said on Monday.
And as we’ve reported on in the past year, there is growing unrest outside of the United States about that nation’s control over much of the Internet’s servers, routers and networks.
The Internet Corporation for Assigned Names and Numbers (ICANN) manages domains and controls the Internet’s backbone. ICANN operates as a nonprofit company under a contract from the U.S. Department of Commerce. (Prior to 1998, the U.S. government managed Internet domain names directly.)
Since the Snowden revelations, ICANN has sought to broaden the discussion over international governance of the Internet. A high-level panel sponsored by ICANN is meeting on Thursday in London to discuss a “multistakeholder approach” to governing the Internet.
The group included Google’s Vint Cerf, Wikipedia’s Jimmy Wales and the current president of Estonia, Toomas Ilves.
Last year, at a contentious meeting in Dubai of a United Nations group involved in global telecommunications, China, United Arab Emirates and Russia argued that other countries should be able to control the Internet’s backbone. The proposal was withdrawn from a treaty approved at the meeting – which the United States didn’t sign.
Next year, Brazil, and not China or Russia, will consider setting up its own Internet, forcing companies like Google to locate its computer systems with Brazil to serve the country’s Internet users.
“You can certainly look at the reaction, both inside the United States and outside of the United States to these disclosures, to see the potential of the closing of the markets through data location requirements,” said Google executive Richard Salgado in congressional testimony in November.
Leading the “splinternet” effort is Brazilian President Dilma Rouseff, who learned earlier this year that the NSA had been reading her private emails as part of its surveillance efforts.
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