If anything, what makes me happy is that Google can even disclose any of this at all. NSL's are a tool that has little oversight and a bit more awareness may help keep them from being abused.
The headline ("Google Says the FBI Is Secretly Spying on Some of Its Customers") seems fair to me.
Google is reporting that it got more than 1 and less than 1,000 "National Security Letters", about more than 999 but less than 2,000 of Google's customers. Because the exact subjects of these letters can't be shared, the FBI's actions are being done "secretly". Because they allow the FBI to receive private information it wouldn't otherwise have without the subjects knowing, this activity fits the colloquial meaning of "spying". All the elements of the headline are supported by the reporting.
Also, usually when investigation requires crossing usual privacy boundaries, and perhaps compelling third-party disclosures, the subject gets to know, and even challenge the search/seizure. Or at the very least, some other impartial hearing occurs – for example, to get a search warrant. Not so with the 'National Security Letters'. So 'spying' is especially apt, compared to the normalcy and equitable procedures connoted by 'investigating'.
There's a stronger case to be made that 'secretly' is redundant; it's already implied by 'spying'. But an oddity of the the NSL law is that you're not even supposed to reveal you've received one. Only now, many years later, are some fuzzy aggregate totals being revealed for prior years. So the extra heightening emphasis 'secretly spying' makes sense as well. Not only are the subjects unaware there online information is being collected, but the magnitude of the collection activity as a whole has been disguised.
Why does the headline use the word "spy" at all? Google did not use the word "spy." They say the NSL is used in "national security investigations." Nor does the word "spy" appear in the body of the Wired article.
Why does the headline use the word "secret"? As you pointed out, "spying" implies "secret". If brevity were the primary concern then it should be omitted.
Hence my conclusion about using the headline as an attention grabber, and not because of its length.
BTW, when I read the headline, I took it to mean that Google found out that the FBI was getting customer information using a means which was secret even from Google. Thus, I believe the headline is also misleading.
While the statements you made about the NSL are true, and I believe NSLs are fundamentally counter to the transparency needed for good oversight, the statement that "when investigation requires crossing usual privacy boundaries, the subject gets to know" is not true. Wiretapping is legal, and the subject does not necessarily get to know or contest the wiretapping. How many times have you or people you know been wiretapped? If you can't be sure of the answer, because not all of that information is public, then wiretapping by the police is "spying" under your definition, is it not?
A difference is that subpoenas and warrants have judicial oversight, while NSLs do not. No, I do not believe that the FISA court or appeal to the FISA court gives sufficient oversight.
Unfortunately, as we recently learned from the Supreme Court, if we don't have proof of being spied upon then we can't say that we're being spied upon.
I'm actually in favor of saying that we are being spied upon. I do so from a moral and ethical view, and not from a legal definition. I think your argument is that this can be called spying because 'this activity fits the colloquial meaning of "spying".' My objection is that other similar activities by the government are not called spying, and neither you nor the Wired article characterized the difference between the "spying" and "secret investigation."
Wiretapping requires a court order. And it is also 'spying', in the common understanding of the word. ('Spying' does not require illegality. With a court order, wiretapping is legal spying. These NSLs are also currently-understood-to-be-legal spying.)
The headline "Google: FBI Spies on its Customers" would have been defensible, too. It's a short, opinionated summary of the equally-opinionated reporting. Yes, it would prompt readers to wonder exactly which kind of 'spying' is meant, which they could find in the article.
'Requests Some Customer Data' would not be enough: there's no indication of the compulsion and secrecy. 'Secretly Investigates' would not be enough, either, because just researching someone via public sources could be a 'secret investigation'. Only 'spying' adds the necessary connotation of surveillance or privileged-document-collection.
And sure Wired picked the word for drama. We should expect reports to feature the most-dramatic-yet-still-fair headlines that can be backed up by the reporting. This recent expansion of oversight-resistant domestic-spying is in fact a dramatic development. Google finding a way to hint at its magnitude is also a dramatic development.
I thought that the main meanings were 1) spying taking place in opposition to laws in other jurisdictions but legal in the first (eg, British spies in the Soviet Union), 2) spying taking place against economic opponents, often using illegal methods (corporate espionage), 3) citizens spy against other citizens if they use illegal means, and 4) the government spies against its citizens using illegal means.
Only #2 of these might use non-illegal means. Otherwise, I thought that "spying" required a violation of the law.
For example, the US law describes spying as "Any person subject to this chapter who, in violation of the law of war and with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign power, collects or attempts to collect information by clandestine means or while acting under false pretenses, for the purpose of conveying such information to an enemy of the United States, or one of the co-belligerents of the enemy..."
But I see plenty of examples where people use "spying" where I would use "surveillance" or other term.
And you know, ... I'm fine with broadening the use of the term 'spying' for these cases. Thanks for the enlightenment!
For what it's worth that's the impression I had too (i.e. that this was similar to Google's Aurora announcement of being hacked by Chinese spies)
Google noted that the FBI may “obtain ‘the name, address, length of service, and local and long distance toll billing records’ of a subscriber to a wire or electronic communications service. The FBI can’t use NSLs to obtain anything else from Google, such as Gmail content, search queries, YouTube videos or user IP addresses.”
So inboxes are not being opened up for the FBI as part of these requests.
"Under the Electronic Communications Privacy Act (ECPA) 18 U.S.C. section 2709, the FBI can seek “the name, address, length of service, and local and long distance toll billing records” of a subscriber to a wire or electronic communications service. The FBI can’t use NSLs to obtain anything else from Google, such as Gmail content, search queries, YouTube videos or user IP addresses."
http://www.google.com/transparencyreport/userdatarequests/fa...
http://www.rsync.net/resources/notices/canary.txt
Some background:
http://blog.kozubik.com/john_kozubik/2010/08/the-warrant-can...
We've been updating this since late 2005.
Indeed, the FBI doesn't have customers either.
That's one way to look at it. Another way might be, "Influential data company prevented from disclosing what the government is doing on the company's network".