Defiant Apple, Facebook, other firms to inform public of govt surveillance requests

Published time: May 02, 2014 01:07
Edited time: May 02, 2014 06:42
Reuters / Eric Thayer

Reuters / Eric Thayer

The same technology companies that the US intelligence community has relied upon to disclose email records are now refusing to keep surveillance requests secret and informing customers when they are the subject of such requests.

In the nearly ten months since former US National Security Agency contractor Edward Snowden revealed extensive surveillance efforts on everyday Americans’ online activity, the companies that were forced to facilitate that surveillance have come under harsh public scrutiny.

The embarrassment ignited a series of comments from executives at Google and Facebook, among others, calling on the NSA and other agencies to either stop forcing them to provide the communications that customers trust them with, or allow them to be more transparent.

Now, according to a Thursday report in the Washington Post, Apple, Microsoft, Facebook, and Google have updated their policies to routinely notify customers when law enforcement has requested information about them.

Yahoo enacted such a change in July, with the Post reporting Thursday that companies “have found that investigators often drop data demands to avoid having suspects learn of inquiries.”

 

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Apple, Facebook, others defy authorities, notify users of secret data demands

Major U.S. technology companies have largely ended the practice of quietly complying with investigators’ demands for e-mail records and other online data, saying that users have a right to know in advance when their information is targeted for government seizure.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. Prosecutors, however, warn that tech companies may undermine cases by tipping off criminals, giving them time to destroy vital electronic evidence before it can be gathered.

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How the NSA is infiltrating private networks

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How the NSA is infiltrating private networks

Fueling the shift is the industry’s eagerness to distance itself from the government after last year’s disclosures about National Security Agency surveillance of online services. 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.

“It serves to chill the unbridled, cost-free collection of data,” said Albert Gidari Jr., a partner at Perkins Coie who represents several technology companies. “And I think that’s a good thing.”

The Justice Department disagrees, saying in a statement that new industry policies threaten investigations and put potential crime victims in greater peril.

“These risks of endangering life, risking destruction of evidence, or allowing suspects to flee or intimidate witnesses are not merely hypothetical, but unfortunately routine,” department spokesman Peter Carr said, citing a case in which early disclosure put at risk a cooperative witness in a case. He declined to offer details because the case was under seal.

The changing tech company policies do not affect data requests approved by the Foreign Intelligence Surveillance Court, which are automatically kept secret by law. National security letters, which are administrative subpoenas issued by the FBI for national security investigations, also carry binding gag orders.

The government traditionally has notified people directly affected by searches and seizures — though often not immediately — when investigators entered a home or tapped a phone line. But that practice has not survived the transition into the digital world. Cellular carriers such as AT&T and Verizon typically do not tell customers when investigators collect their call data.

Many tech companies once followed a similar model of quietly cooperating with law enforcement. Courts, meanwhile, ruled that it was sufficient for the government to notify the providers of Internet services of data requests, rather than the affected customers.

Twitter, founded in 2006, became perhaps the first major tech company to routinely notify users when investigators collected data, yet few others followed at first. When the Electronic Frontier Foundation began issuing its influential “Who Has Your Back?” report in 2011 — rating companies on their privacy and transparency policies — Twitter was the only company to get a star under the category “Tell users about data demands.” Google, the next mostly highly rated, got half a star from the civil liberties group.

 

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