Silicon Valley defies subpoena secrecy requests, but national security gag orders remain

Silicon Valley defies subpoena secrecy requests, but national security gag orders remain

Summary: Apple, Facebook, Google, Microsoft and Yahoo have begun disclosing to users that authorities have asked for their data, defying government requests that they not do so.

SHARE:
justicedept
U.S. Department of Justice (Image: Wikimedia Commons)

Silicon Valley tech giants have reportedly begun notifying users of data requests by government authorities under subpoena, despite requests by the government to retain a level of secrecy.

Reported by The Washington Post on Thursday, Apple, Facebook, Google, Microsoft and Yahoo have updated their policies to notify users of a data request unless a judge or other competent authority issues a gag order.

These issues are technically unrelated to surveillance matters disclosed last year by whistleblower Edward Snowden. Neither the National Security Agency nor the Foreign Intelligence Surveillance (FISA) Court are involved. But the new company policies are a clear response to the embarrassment suffered by the companies in light of the disclosure.

Since the disclosure of NSA surveillance programs, the companies have worked to demonstrate to customers that they do not give the government free rein over customer data. Many of them sued the federal government in the FISA court for the right to disclose aggregate data about the number of requests.

A settlement was reached and the aggregate disclosures began in February.

Silicon Valley have longed to release these secret FISA figures, no more so than in recent months following the Snowden disclosures. ZDNet spoke to a number of legal experts, lawyers, and academics in November, and the consensus was that they "don't know" precisely what would happen should these companies release the figures regardless of the restrictions.

"Nothing in FISA's text or legislative history suggests the Act prohibits a recipient of a FISA order from... disclosing the aggregate number of requests it has received." — Apple amicus brief, 2013

Any number of financial or custodial penalties could be applied to individuals known to be aware of FISA orders, according to Deborah Caldwell-Stone, deputy director for the Office of Intellectual Freedom at the American Library Association, who spoke to ZDNet last year.

"We don't have a factual basis to go off," she said, describing how experts could only speculate because the law itself does not specify what such penalties might be. However, at very least, violating a gag order would amount to contempt of court, she said.

However, if the company disclosed the contents of a FISA order, they would be prosecuted or penalized by the FBI in violation of those security clearance agreements, according to Patrick Toomey, a staff attorney at the American Civil Liberty Union's (ACLU) National Security Project.

The history of subpoenas shows that disclosure to the target of investigation was traditionally given and, in many cases, is inevitable if it requires the cooperation of the target. In the context of Internet records, the data is held by a third-party — the largest tech companies at issue — and courts have ruled that disclosure to the tech company was sufficient.

But the tech companies have decided to assert customer rights in the face of such subpoenas. The Washington Post article gives no indication that the government is attempting to force the issue, and in fact the new policies have led many government entities to withdraw or hold back on requests.

Such unilateral action was considered by the companies during the dispute over releasing aggregate FISA request data. The legal implications of that act were unclear, but in that case the parties were operating under the authority of the FISA court. The subpoena requests happen at all levels of government. US magistrate judges, who hear requests by Federal authorities for user data, have also begun pushing back against many of them.

The EFF has periodically reported on the extent to which companies protect user privacy. The latest report shows Dropbox, LinkedIn, Sonic.net, SpiderOak and Twitter as telling users about data demands, with Google getting partial credit.

A new and updated report is due to be released later this month.

Topics: Security, Government US, Privacy

Kick off your day with ZDNet's daily email newsletter. It's the freshest tech news and opinion, served hot. Get it.

Talkback

45 comments
Log in or register to join the discussion
  • Biggest reason to oppose government surveillence

    It makes it very difficult to overthrow a tyrannical government.
    Dr_Zinj
  • Sooner or later they'll have to comply

    Over time more and more of the requests will transition to "national security". Government will is usually much stronger when it comes to security matters. The fact is this: users did not leave or quit online services as result of Snowden. The vast majority of users simply don't care as this sort of thing does not affect they day to day lives.

    And even though I work in tech and very well understand the risks posed by data loss, data sharing (with governments), etc. etc. - I really don't mind NSA, GCHQ or any security service looking at my posts, emails and whatnot. It's fine by me. The better they know me, the better it is for me.
    winGeek
    • Whatever

      Feel free to trust your stuff to whoever you please; but the rest of humanity shouldn't be tied to your inhibitions.
      sandmich
    • Depends...

      ...on whether they prevail in court. I'm guessing that some very good lawyers reviewed the situation and advised their employers that they'd probably win if the feds took issue with this decision.
      John L. Ries
      • Come to think of it...

        ...if a company discloses that it received an NSL, a U.S. Attorney would have to prosecute the executives responsible, which might difficult, given that federal defendants are entitled to a jury trial.
        John L. Ries
        • I wouldn't bet the farm on that conjecture, John

          The FICA court makes up Constitutional rules as they go along.
          kenosha77a
          • Yes, but...

            ...FISC doesn't hold criminal trials. Any criminal prosecution would have to be done in a regular US District Court following regular procedures. And jury trials are constitutionally guaranteed.
            John L. Ries
          • and no...

            ...there's no way that any court (civilian or military) is going to accept a claim that U.S. citizens who disobey NSLs are "unlawful combatants".
            John L. Ries
    • it's all good as long as the gov matches your morals...

      Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their consciences.

      -- C. S. Lewis
      dddienst
      • Some truth to this, but...

        ...if laws and government policies are to be effective, they *must* reflect the moral consensus within the society that has to live by them. There is *no* such thing as an amoral legal system, nor can there be.
        John L. Ries
        • To elaborate

          All laws depend heavily on voluntary compliance. Some enforcement is always required, but the less popular the law, the more effort will be required to enforce it; this is part of why democracy is cheaper and more stable (ie. requires much less enforcement) than dictatorships are.

          And legalizing practices held by most people to be immoral can also cause problems, as the police might have to work harder to protect those engaging in them from their neighbors.
          John L. Ries
          • What if

            the neighbours are other countries?
            Tonydid
          • That's how wars start

            But I don't think it will go that far. There will be a solution in the end, it will almost certainly be negotiated by diplomats, and like most diplomatic solutions (other than the ones pushed behind the scenes by lobbyists), it's likely to be one that many people are unhappy with, but is generally agreed to be better than the status quo.

            The system of sovereign nation states we have does have its problems, but the usually proposed alternatives don't appear to be any better.
            John L. Ries
        • The definition of "tyranny" here is actually twisted

          The usual definition involves government being conducted for the benefit of the governors to the detriment to the governed (with a heavy dosage of the repression required to make such a system stable). Mind you, enlightenment can be overdone, and even rulers with the best intentions can be resented for heavy-handed paternalism, but it seems to me that an essential ingredient in tyranny as the word is usually used, is the pursuit of unenlightened self-interest on the part of those in charge.

          The original definition used by the ancient Greeks was that a tyrant was an illegal or extralegal ruler (ie. a boss), oppressive or not; corrupt or not. The process of perjoration proceeded from there, helped by such infamous Greek tyrants, such as Hippias (the inspiration for the original Athenian democracy); but "tyrant" was also the usual title of the rulers of Syracuse for several centuries (lasting until the Roman conquest put a permanent end to Syracusian independence), and no insult was meant or taken.
          John L. Ries
          • As in

            about 90% of the wealth being in the hands of 10% of the people?

            The usual definition involves government being conducted for the benefit of the governors to the detriment to the governed.

            Sounds about right for most countries, in some the ratio is even harsher than that.
            Seems like the Planet is being run by Tyrants....or maybe I have a cockeyed view of this.......
            Tonydid
          • I'm not quite so jaded

            I think most elected officials and civil servants try to do a good job and sometimes succeed (possibly because I've known a few). There are problems with democracy, but withdrawing from and delegitimizing the system makes them worse, not better.

            What is both false and dangerous is the notion that all political systems are equally illegitimate and equally oppressive, as in the end, it ends up damaging democratic systems that need public support and participation to function, without appreciably undermining authoritarian or totalitarian ones that require only the public's acquiescence. And anarchy just means the warlord with the biggest guns and the best disciplined army rules.
            John L. Ries
          • Likewise, the word "dictator"

            was originally used to refer to the unitary wielder of consular power during an emergency, when the Senate decided that the pair of consuls who had to agree on every action could not deal with the emergency quickly enough. And the word "emperor" originally meant "commander (in chief) of the troops" which was Julius Caesar's euphemism for his office, to avoid using the word "king" (REX in Latin).

            So technically, our Presidents are ALL, in the original technical sense, "emperors."
            jallan32
          • Actually...

            ...the way I've always looked at it was that the Roman Emperor was a tyrant in the original sense of the word.
            John L. Ries
    • Speak for yourself

      What a good subject! Some of us, however, are free citizens and intend to remain so.
      skepticat
      • Lose freedom?

        So tell me skepticat, what freedoms of yours have been taken away? (Other than some guns being banned for sale in some states, just like I haven't been able to buy a fully automatic weapon, or a howitzer, etc.)

        Seriously.

        (I'm not a supporter of government spying or anything, as I hold more Libertarian views, I just think comments should make sense.)
        freakneck