Phony Baloney FISA Court Makes Resistance to Surveillance Requests a Futile Effort
As I noted a few days ago, it's hard to tell just how complicit tech companies and telecoms are in government snooping, because of the veil of secrecy behind which the hoovering of data stored by the likes of Google and Facebook is conducted. Are companies resisting? Are they folding? We have only hints and anecdotes to go on. We do know, however, that the Foreign Intelligence Surveillance Court has a history of rubber-stamping snooping requests, which might put a damper on any rebellious spirits who aren't even allowed to advertise their dismay. Now, using data compiled by the Electronic Privacy Information Center as well as tales extracted from several unnamed (for good reason) sources, the New York Times tells us just how bad the situation is.
From Claire Caine Miller at the New York Times:
SAN FRANCISCO — In a secret court in Washington, Yahoo's top lawyers made their case. The government had sought help in spying on certain foreign users, without a warrant, and Yahoo had refused, saying the broad requests were unconstitutional.
The judges disagreed. That left Yahoo two choices: Hand over the data or break the law.
So Yahoo became part of the National Security Agency's secret Internet surveillance program, Prism, according to leaked N.S.A. documents, as did seven other Internet companies.
Like almost all the actions of the secret court, which operates under the Foreign Intelligence Surveillance Act, the details of its disagreement with Yahoo were never made public beyond a heavily redacted court order, one of the few public documents ever to emerge from the court. The name of the company had not been revealed until now. Yahoo's involvement was confirmed by two people with knowledge of the proceedings. Yahoo declined to comment.
But the decision has had lasting repercussions for the dozens of companies that store troves of their users' personal information and receive these national security requests — it puts them on notice that they need not even try to test their legality. And despite the murky details, the case offers a glimpse of the push and pull among tech companies and the intelligence and law enforcement agencies that try to tap into the reams of personal data stored on their servers.
Famously, the Foreign Intelligence Surveillance Court approved all but one of the 1,856 surveillance requests it received in 2012. According to EPIC, in most years, the FISC has denied none of the surveillance requests placed before it. In some years, the court somehow manages to approve more surveillance applications than it officially receives. As a result, says the Times, companies looking to resist the most intrusive demands "rarely fight in court, but frequently push back privately by negotiating with the government, even if they ultimately have to comply."
The Times quotes sources, including Christopher Soghoian of the ACLU, attributing a "libertarian, pro-civil liberties vein" to many people in the tech industry, but at its best, that leaves demoralized business people with little chance of prevailing and no opportunity to appeal to public opinion as the only line of defense between nosy government officials and targeted customers. The customers themselves, with an obvious interest in their own privacy, are not given the opportunity to defend themselves or even notice that they need defense.
As for those who find some comfort in the idea that something called a "court" is at least perusing these surveillance requests, keep in mind that the FISC operates at a lower standard of scrutiny than, say, a real court. Notes EPIC:
Under the Fourth Amendment, a search warrant must be based on probable cause to believe that a crime has been or is being committed. This is not the general rule under FISA: surveillance under FISA is permitted based on a finding of probable cause that the surveillance target is a foreign power or an agent of a foreign power, irrespective of whether the target is suspected of engaging in criminal activity. However, if the target is a "U.S. person," there must be probable cause to believe that the U.S. person's activities may involve espionage or other similar conduct in violation of the criminal statutes of the United States.
But, if a "U.S. person" is conversing with somebody oversees?
And the court still deliberates, and issues its decisions, in secret.