More Tech Firms Now Question Government Snooping. What About Congress?

Do you miss the days when revised terms of service from Internet companies would have people outraged over the threat to their privacy?

I’d like to think the National Security Agency does after the last two weeks of disclosures about its telecom surveillance operations.

It’s still unclear just how much data the NSA has been collecting about Americans’ telephone and Internet use, incidentally or not, and what sort of privileged access to private networks sustains that activity. For that you can blame the NSA’s just-trust-us unwillingness to document even the procedures it says it follows to avoid targeting domestic communication, but also to rushed and ongoing reporting that exaggerated some things and got others wrong at first.

What’s clearer is how the controversy seems to have either liberated or prodded some previously-quiet tech companies to describe how much data about their users the government has sought–and to push back publicly against this surveillance.

For example, Facebook followed the good examples of Google, Twitter and Microsoft by posting its first “transparency report,” which even folded in rough numbers about how many queries came via Foreign Intelligence Surveillance Act proceedings: between 9,000 and 10,000 in the second half of 2012.

But by not breaking out FISA demands from others, even in vague ranges, this post was not as helpful as it could have been.

Microsoft revealed a similarly obscured total number of criminal and national-security inquiries–“between 6,000 and 7,000” in the last six months of 2012–the next day. You can, however, compare that figure with Microsoft’s earlier transparency report; Forbes’ Kashmir Hill estimated that over all of 2012, maybe as many as 34,000 were targeted in national-security inquiries.

Monday morning, Apple broke with its customary silence to sum up the law-enforcement requests it fielded from Dec. 1, 2012 to May 31, 2013: “between 4,000 and 5,000 requests” concerning “between 9,000 and 10,000 accounts or devices.” Again, this did not break down which queries came via FISA and which resulted from everyday domestic law enforcement.

And that night, Yahoo posted its own rough totals: “between 12,000 and 13,000” criminal, FISA and other queries between Dec. 1, 2012 and May 31, 2013. In that post, CEO Marissa Mayer and general counsel Ron Bell pledged to publish a more comprehensive transparency report–which I hope will note how many users were targeted–twice a year.

I feel like I should applaud this newfound activism. I want to see companies compete to defend the data I share with them against unwarranted government snooping (provided they’re no less picky about handing it over to other companies). We need more firms documenting how many inquiries they get from the Feds and explaining how they respond to them.

But that’s not all of it. In some ways, this situation feels like a breakdown from how things ought to work.

This pushback against government curiosity isn’t new–we’ve recently learned that some of these companies were trying to stop national-security searches in the courts five years ago. Why didn’t more share their views about protecting digital privacy from government overreach back then? The troubling idea that they didn’t think we needed to know invites skepticism that this week’s moves are a defensive PR ploy.

(It could be worse! Remember how some companies lined up in support of SOPA before their customers rebelled?)

Further, we don’t have actual representation in most of these companies. And most of them, as the Washington Post’s Walter Pincus noted Tuesday, aren’t too open about their own information-sharing procedures.

We can certainly take our business elsewhere–but does the massive asymmetry of this situation distort our options? It’s nice to suggest that we switch to smaller firms that haven’t been implicated in NSA surveillance, but can these competitors do any better at pushing away the government’s magnifying glass when it inevitably turns toward them? Going to court against the Feds is a slow and expensive proposition. Should I also factor in their ability to put enough lobbyists on retainer?

(There are honorable counter-examples. The mobile-phone-service reseller Credo Mobile apparently took the government to court over the gag order routinely applied to National Security Letter demands–I have to say “apparently” because it couldn’t even acknowledge its reported involvement–and had a district court judge rule that gag order unconstitutional.)

Alas, a lot of the people we actually hired to hold the Executive Branch accountable don’t appear too interested in that work.

Too many representatives and senators see no problem with the reach of “No Such Agency” and its ilk–they’ve voted in favor of sweeping, classified surveillance more than once, subject only to the discretion of a secret court that rarely says no. Some not only think this state of affairs is fine today but regard press inquiries as a bigger problem: The Senate Select Committee on Intelligence refused to let its former general counsel share unclassified details about its oversight with Talking Points Memo.

Pending a massive switch towards public-key encryption of all of our online communication–which I’m sure will happen right after everybody gets in the habit of making regular backups–we may be stuck in a weird situation in which large corporations can offer a more effective defense of our Constitutional rights than some of our elected representatives who swore an oath to do so “well and faithfully.”