Claire Cain Miller, in a new article today for The New York Times, details the way that our Silicon Valley giants have been collaborating with U.S. intelligence — a story originally exposed last week when Edward Snowden released a series of classified documents to reporters at The Guardian and The Washington Post. Snowden’s papers indicate two programs — the widespread surveillance into the “metadata” from Verizon customers’ phones, and a pervasive collection of Internet information through partnerships with at least nine different technology companies.
The companies — Google (which owns YouTube), Yahoo!, Facebook, Microsoft (which owns Hotmail and Skype), AOL, Paltalk, and Apple — have all denied knowledge of the program, or allowing the government direct access to their servers. But as Miller explains, that actually means bupkis. “One of the plans discussed was to build separate, secure portals, like a digital version of the secure physical rooms that have long existed for classified information, in some instances on company servers,” she writes.
Not exactly “direct access,” a facet of the original reports which so many companies were quick to pounce on and deny. But damn near it. Think of it like a private mail room — the NSA, frequently operating through provisions made by the super-secret Foreign Intelligence Surveillance Act (FISA), requests private information on a company’s user — either through a warrant, subpoena, or court order. The company lawyers receive the request, frequently approve it, and have the information deposited within an encrypted partition of the company servers for the NSA to pop in and retrieve.
Super simple. Super easy. No mess, no transparency, no privacy. You probably don’t even know it happened.
As many have noted, Twitter wasn’t included in the published documents as a collaborator. That doesn’t mean they didn’t hand over their users’ data when the government came knocking (they received over 815 government requests in 2012 alone, a 70% increase over the last three years, of which they obliged 69% of the time). They collaborate, as it seems all companies must, though they have made an admirable attempt at making it inconvenient. Handing over data is required by law — doing so on a nice pretty silver-server-platter, however, is not.
Government requests for Google customers' data by year:
“Tech companies might have also denied knowledge of the full scope of cooperation with national security officials,” Miller continues, “because employees whose job it is to comply with FISA requests are not allowed to discuss the details even with others at the company, and in some cases have national security clearance.” She cites a former senior government official and a lawyer representing a technology company, both of whom — unsurprisingly — spoke under the condition of anonymity.
This has sparked a debate nationwide over the price we pay for our security. The balance between our freedoms and our liberties is a delicate one, frequently defined and re-defined by each administration that takes up the formidable duty of protecting American citizens. But what has many worried is the size and the scale of the programs that do this — not to mention the fact that, well … no one knew it was happening. Even those few senators (such as the ones who sit on the Senate Intelligence Committee) who knew about the FISA court were bound by law to keep their knowledge secret, even from the rest of their peers who voted to reauthorize the very act to allow it.
It might be that we are entitled in our outrage — that we live underneath a government that wants to know all our deepest secrets, while maintaining exclusive (and forceful) control of its own. We have seen whistleblowers prosecuted and court-martialed, and the private records of journalists pulled in an effort to hunt down the identity of anyone still crazy enough to talk to journalists.
President Obama has led a historically unprecedented effort to keep his secrets — which, increasingly, reveal an unprecedented attempt to go after ours.
“When it comes to your telephone calls,” he reassured us calmly last week, “nobody is listening to your telephone calls.”
But this is 2013. And in the same way that we communicate differently than we used to, so too does intelligence operate differently. So-called “metadata,” or the little bits of code released by our phones each time we make a call, is extremely valuable. It’s a new tool for intelligence, not covered under many existing privacy laws, and it can give an intelligence official more information in a more efficient way than eavesdropping on a conversation ever could. The call patterns we make during the day reveal who we do business with. Our calls to doctors reveal our medical history — a call from one business to anther reveals future deals, propositions, and acquisitions. The calls from congressional cell phones reveal political intentions, donations, and partnerships. The calls we make at lunch reveal our friends and our family, while the ones we make at night reveal our affairs.
The government doesn’t listen to our telephone calls because they don’t have to. They’re smarter than that. They know more by collecting wider, and listening less. And if they wanted our name, well, they could find it in seconds.
To say this information isn’t being abused is believable, if not a stretch. To say it never could be, or never will be, is hilarious.
President Obama has been insultingly oblique and casual about these programs, many of which went unknown even to Congress (so long to whatever was left of a separation of powers). Our communications have changed and our government has caught up, resulting in a breathtaking level of access to the stuff we thought was ours. Even the companies that produce their own privacy reports, detailing just how frequently the government makes requests for data (Twitter, Microsoft, and Google, for starters), are forbidden by law to mention FISA.
No one is allowed to mention FISA. Until Edward Snowden did.
And now we know about it. It’s out, and it’s ours, and now we have to make a choice. What is the price we’re willing to pay for our safety? Just last week, the Supreme Court decided that one’s DNA can be collected by law enforcement without a warrant, upon certain arrests — not for the purposes of identity, but to solve past crimes. Antonin Scalia, in a remarkable dissent (never thought I’d write that), noted: “Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail…”
Resisting the urge to play the this-is-Orwellian card is challenging, when considering the scope and secrecy of these operations. And indeed, we live in a world — or at least a part of it — that is kept pretty safe by the work of our intelligence community. But precedents are being set. Washington and Silicon Valley are frightening bedfellows, controlling an astounding amount of our daily lives between them. (Another separation of powers, if you will, that appears to be gone.)
Our metadata, e-mails, chats, posts, tweets, likes, even our DNA, may all belong to the state for the greater good. Today it’s being collected by the American government, but tomorrow it will be China, or Russia, or Brazil, or whatever global player decides to re-write the rules after we're done.
Are we okay with that? Are you?