Contesting the Government’s Surveillance Programs

July 29, 2013

NSA SpyEdward Snowden alleged extensive collaboration between the National Security Agency (NSA) and major technology companies to execute the NSA’s surveillance programs.  It remains unclear the extent to which that collaboration was voluntary or compelled through secret orders issued by the Foreign Intelligence Surveillance Court (FISC).  We are now also aware that some of the companies targeted by the government have aggressively moved to contest the spying programs, acting on behalf of their customers.

Recently, the Electronic Frontier Foundation (EFF) applauded Yahoo’s efforts to contest FISC orders compelling disclosure of data associated with certain Yahoo customers.  Yahoo reportedly received the orders in 2007, and the company challenged the orders at FISC.

FISC ordered disclosure of the customer data, and Yahoo apparently appealed the FISC order at the Foreign Intelligence Surveillance Court of Review.  Yahoo lost that appeal, and the company requested that it be permitted to reveal additional information about the case to the public.

Earlier this year redacted versions of the FISC orders compelling disclosure by Yahoo were obtained by the media and published.  Apparently as a result of the media disclosures, Yahoo was granted permission to reveal that it had been involved in this case for several years.

A few Internet service providers have also been identified as active challengers of government data disclosure orders.  For example, in California, and XMission in Utah have received substantial public visibility for their aggressive efforts to protect customer data from disclosure to the government.

As a matter of course, these companies force the government to follow the rules associated with compulsory disclosures.  For example, they require that all requests for customer data be completely accurate and properly limited in scope.

The companies also insist that all government requests for data be presented in the form of probable cause-based warrants.  Additionally, the companies make use of all legal means available to them to contest, limit, and appeal all government data disclosure requests and orders.

XMission reports that by requiring entirely complete and accurate data disclosure orders and by insisting that all such orders be presented in the form of court-issued warrants, the company has significantly limited the amount of customer data made available to the government.  By insisting that the government follow all rules associated with data disclosure orders, the company has apparently been able to limit the scope of government intrusion.

Companies such as XMission and Yahoo provide useful models for responses to government data disclosure requests and orders.  By insisting that the government follow all applicable rules associated with compulsory data disclosures, it is apparently possible to reduce the scope of those disclosures.

By exercising all available rights to contest, limit, and appeal government data disclosure orders, companies can, at least in part, protect the interests of their customers.  These actions on behalf of customers are ultimately good business strategy as customers are likely to look with favor on businesses willing to fight to protect legitimate consumer interests.