Why didn't tech company leaders blow the whistle?
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If we're talking about the first leaked version of PRISM, we still don't even know if it exists or how it works. Subsequent revisions have made it seem that if the NSA doesn't have the immediate ability to query the companies' backends, then they have some kind of carte blanche ability to ask for data and immediately receive it. If either of these are true, then certainly, where are the whistleblowers? If not, and there's a very real chance that neither of these are true, then the question doesn't make sense.
If instead we're talking about FISA orders, there's nothing secret to blow the whistle on. Everyone knew what they would allow. Congress was briefed on what they actually have allowed. The EFF has been in court for years (7 and 5 on different cases) to try to just figure out if their clients have standing to sue over FISA. Many of the companies on that PRISM list now have transparency reports that tell you exactly how they disclose data and provide numbers for requests (other than FISA, which you're not allowed to do). There's been tech blog coverage for years by sites like Ars Technica that discuss everything from the flawed ECPA to the attempts by the Obama administration to use national security as a guise to subvert all attempts to find out what these intelligence programs even do, let alone who they do them to. So, what did you expect them to blow a whistle on?
For instance, Google and Microsoft are both now reporting ranges of the NSLs they receive; in effect, a kind of whistleblowing, albeit a legal and vetted one. NSLs are very much like FISA orders, in that they contain gag orders and have minimal oversight (and no public oversight) for their approval. Where's the indignation and action over those?
If we're going for hindsight here, the real question is where the hell were the major news outlets and where the hell were the American people? Or why has Congress been willing to approve this program on multiple occasions? Assuming incompetence in all three of those groups, the usual response to those questions, is not an acceptable answer.
If instead we're actually looking to the future, we need to ask how we're going to hold the Obama administration and Congress's feet to the fire to make sure that this ends, and that any real search beyond basic information (in a very narrow scope!) requires probable cause demonstrated before a judge, and that notification of a warrant can't be gag-ordered and withheld indefinitely.
That Section 215 exits is public record. However, the government has a "secret interpretation" of the law that allows itself many more powers than what is written in the publicly accessible version.
Only congressmen on the Senate Intelligence committee were briefed on the secret interpretation. With the exceptions of Mark Udall and Ron Wyden, who tried warn the American public without revealing anything classified (in 2011), the rest of the congressmen on the committee did not have a problem with what the NSA was doing. Many of the congressmen on the SIC are ex-military or receive large campaign contributions from defense contractors and/or the intelligence community.
https://www.eff.org/deeplinks/2013/06/government-says-secret...
"...agency" as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency..."[0].
I suppose it might be possible to go after the briefs and evidence presented by the DoJ to the FISA court with FOIA requests but anything you would get would be redacted to nothing.
[0] [pdf]: http://www.justice.gov/oip/amended-foia-redlined-2010.pdf
So you could easily get persecuted for breaking the law that you were prohibited to know it even existed.
The same was going on in east Germany and other socialist countries.
I warmly recommend watching The Lives of Others (http://www.imdb.com/title/tt0405094/) to those who haven't seen it yet.
Just donated.
It seems to me the FISA Court still has the power the make the ruling public, even if the government classified it. It wouldn't be the first time a judge overrules classified information, right?
It seems to me the judges are accomplices to the government (why would they still grant the warrants, if they already found it unconstitutional?), and even if there was some kind of conflict in the law, I assume they would know this could go to the Supreme Court and it would be solved there.
Particularly since every tech company leader (and the NSA) are insisting that neither is true.
(I'll keep talking about Google specifically just to narrow things down for now.)
* NYT suggested that FISA orders can be broad and shallow ("a broad sweep for intelligence, like logs of certain search terms") instead of narrow and deep (eg. everything on person or company X), but CNET's source contradicted that https://news.ycombinator.com/item?id=5845878 .
* The Washington Post used language which suggested that Google's lawyers may have been taken out of its FISA-702-order-execution loop altogether, but NYT contradicts that and Google has denied it https://news.ycombinator.com/item?id=5847846 .
* The Verizon mega-warrant suggests that NSA might be gathering data under similarly broad FISA orders, something that (like broad-and-shallow orders) would make "no direct access" a lot less meaningful, but that's been denied by Google https://news.ycombinator.com/item?id=5847959 and the various anonymous sources seem to be contradicting it too.
* The NYT article http://www.nytimes.com/2013/06/08/technology/tech-companies-... seemed to hint at the possiblity that the Google lawyers processing FISA orders could be suffering some kind of reverse regulatory capture or that Larry Page and Chief Legal Officer David Drummond could have lost track of the extent and nature of what they were approving. There doesn't seem to be any specific evidence for that though.
One thing that does seem to be true is that if you make it more convenient for the NSA to get data under FISA 702 orders it will respond by getting a lot more of it. Apparently the NSA's PRISM stack boasts of a 63% increase in the number of communications obtained in 2012 from Google http://www.guardian.co.uk/world/2013/jun/06/us-tech-giants-n... (and much larger increases at other companies). Still, it seems the PRISM system hasn't - or at least, hasn't yet! - facilitated an order-of-magnitude or game-changing increase in the scale of FISA 702 snooping. Overall there doesn't seem to be any great change in what we think we know http://www.wired.com/images_blogs/threatlevel/2013/05/fisaca... about that.
So, unless some of those hinted worries are true, there doesn't seem to be anything very big that Larry Page could have brought to our attention that wasn't public knowledge last week already. The biggest news is probably the increase in the scale of the data requested, and if Page cared enough about that he could presumably just have done a Twitter and declined to build a semi-automatic pipeline...
(IANAL or anything else.)
http://www.guardian.co.uk/world/2013/jun/08/nsa-prism-server...
[1] https://www.eff.org/deeplinks/2013/06/government-says-secret...
More broadly though, I don't understand how you can possibly have secret courts. Justice not only must be done but must be seen to be done, otherwise its not justice.
They are about masking injustice behind the veil of "law".
Since US is a country with long tradition of rule of law. The easiest way of subverting the rule of law is by subverting the concept of a judge and of a court.
There.
I don't understand how you can have secret courts either. It's a perversion of what this country was founded upon.
Edit: Way to mind-meld on the comments, team. Holy crap.
From what Obama said, "Congress was informed", it was not asked to approve anything. That's very different.
1. As the NYTimes article leaks[1], the leaders of these tech companies may not actually know the extent of FISA and PRISM within their servers - employees cooperating with the NSA would be forbidden from sharing this even with the CEOs.
2. What are they blowing the whistle on? There are a flurry of competing facts and fragmented stories. It came out afterwards that the NSA may not actually have as incredible access as they originally claimed. All they had to go on was the original Guardian article, which merely states "direct access" - everything else is, as the CEOs stated, covered under FISA laws.
3. Speaking of FISA laws, it's a violation of national security to even acknowledge the existence of FISA requests. PRISM is justified through section 702 of FISA. They wouldn't risk treason. This is reasonable. Are you on such a high horse as to say you would do differently?
[1]: http://www.nytimes.com/2013/06/08/technology/tech-companies-...
Think about it: Let's say you're the CEO of any of these companies. If someone from the NSA or the FBI serves a top secret FISA order on some poor SRE in your datacenter, do you even qualify as one of "those persons to whom disclosure is necessary to comply with such Order", or an attorney?
Now, maybe your General Counsel knows what's going on, or maybe the knowledge is scattered throughout your legal team. Your lawyers, who are supposed to be representing your interests, are now bound to keep these secrets from you, and possibly even from each other. This is something that affects millions of people, and you can't do anything to fight it, because you aren't necessarily allowed to know what's going on in your own company. The only sign might be that a few previously-happy key employees suddenly seem stressed and quit for no apparent reason.
Freedom of speech is such a basic assumption in our society that we struggle to understand the full implications of what can happen when it's taken away.
Or, if we want to be optimistic, maybe they had no idea what their companies were participating in. Maybe the NSA people they met with were lying about their plans or purposes. It is a classified system, so maybe they felt compelled to leave out details that would otherwise have had the CEOs fighting back.
I think this issue goes against shareholders because they can lose real customers feeling defrauded.
It's realistic to expect legal actions against Google/Microsoft/etc operations outside US, mainly for Government accounts.
I've heard several people say this... I find that... unlikely.
Do you really see the type of people who use facebook; the type of people who buy things that are advertised online, well, do you see them changing their behavior? I'm pretty sure most of them are okay with being watched; otherwise they wouldn't be on facebook to begin with.
And those are the users that matter.
Also, look at it from the governments point of view. If you're NSA, do you really feel like you're violating intimate privacies to go through information people knowingly expose to one time acquantances on Facebook? The NSA is made of people, remember. How people view their own information enforces their understanding of where the line is.
Well, I don't know what your prejudices about shareholders are, but I know a few of them and they really care about morals, probably much more than average Joe.
Anyway, making a super State that controls everything goes against shareholder's interest as history shows the first thing super states do is eliminate competitors altogether.
You know Mr Adolf Hitler asked again for more business contributions to his party. They were angry to be asked again so they put a condition in place: "Only if you don't ask again in a long time". Hitler smiled and say:" Don't worry, it is the last time I ask you for contributions."
It was.
2.) Nazism != fascism. (And even Nazism "worked" for some Nazi industrials for a while, if you will).
Mussolini: "Fascism should more appropriately be called Corporatism because it is a merger of state and corporate power."
Chomsky: "Governments have a defect, they're potentially democratic. Corporations have no defect, they're pure tyrannies."
So yeah, it's great that corporations don't want anyone who could possibly stop them in their undertakings. Actual people on the other hand would do well to restrict both government and corporations. That is, we should make them in our image, not the other way around.
According to superstar trial lawyer Gerry Spence (http://en.wikipedia.org/wiki/Gerry_Spence), as of when he wrote his book on Ruby Ridge, in an aside WRT serious prosecutor misconduct in that case, he has never tried a case against a Federal prosecutor in which there wasn't egregious misconduct. Come to think of it, his skill in finding that probably helps his near perfect success rate, and especially his signature tactic of resting without presenting a defense.
The implausible part of the worst PRISM allegations was that Google/Facebook/etc. behaved like that, but telcos have acted as extensions of spy agencies for as long as they've been around -- back to the "Black Chambers".
This is a good concrete example of something I often point out, which is that an extension of the government is what regulation is.
Apple wasn't added until after Jobs died, years after other major players:
The most surveillance-relevant services Apple provides are probably iMessage, iCloud and FaceTime. All were announced in 2011 and saw widespread adoption in 2012.
http://en.wikipedia.org/wiki/File:PRISM_Collection_Details.j...
It's well known that there is a "secret" interpretation of the PATRIOT Act and FISA revisions that basically allow unlimited loopholes for accessing any data. Going up against what is arguably the most powerful organization in the world and the most powerful government in the world, while you have a nice cushy tech job, would be dumb.
Besides that, not many engineers employees for private companies have a firm grasp on all of the details of the law. How many people can say for certainty that it is even illegal for the NSA to do broad data-mining of US citizens?
As for the subject/headline, which I'm not sure is related to the particular post linked, it seems pretty simple. Tech companies would probably see PRISM with much more perspective than the internet's knee-jerk reaction. After all, these are companies who have that information at their finger tips 24/7, who can invade all kinds of privacy without any oversight or checks and balances and nobody would even know to get outraged. The media companies, particularly Google, are companies that regularly collect and profile that information anyway for the expressed purpose of profiling people in order to maximize their ability to manipulate the public. As far as tech leaders are concerned, the NSA is the first party to suggest doing something non-evil or selfish with all that data.
So for things like listening to phone conversations, there's still an argument and some outrage to be had. But I think for a lot of the companies, the leaders would have to sooner blow the whistle on themselves than the NSA. The whistle blowing would have to come from where it apparently did--an ideologue who has a fetish-ized view of the public sector as something evil and invasive even as the private sector pours over all the same information unimpeded for selfish ends.
I think you have it reversed. The NSA is the only ones doing evil at this point. The private sector isn't in a position to use force in combination with the data.
> an ideologue who has a fetish-ized view of the public sector as something evil and invasive
You mean a public sector that would be deliberately violating the Constitution they swore to uphold? That would really be a fetish -- holding the public sector to the Constitution.
The right question to ask is "Why didn't tech companies fight the orders in court", and the answer is, of course, if you're in a heavily regulated industry the government can crush you without involving the judiciary. You could win the court battle and go out of business, even if regulators don't attack you personally over "three felonies a day".