The cycle of leaks and discussion around the NSA and its post-9/11 role in American society has had an impact on the degree to which companies can talk about their efforts to resist corporate intrusion. One result of these leaks has been additional information on Yahoo’s efforts to protect its US users. For years, Yahoo fought the government’s attempts to compel it to turn over private data, even though gag rules prevented it from ever discussing the case. The EFF just acknowledged the company’s silent battle with a sparkling gold star of “special distinction,” despite the fact that the company’s challenges ultimately failed.
Now, however, we’re going to get a chance to see some of the privileges and powers the NSA has claimed for itself over in the US, and just how strenuously Yahoo fought those orders in court. The United States Foreign Intelligence Surveillance Court (FISC), the court that oversees the FISA Act and evaluates the warrants the NSA files, has ruled that the government must make the case history available, though it will do so in redacted form. While it changes nothing about the current state of US law or the NSA’s powers, it will at least give us some insight into how the government sought to use its spying and what Yahoo argued in an attempt to protect its users.
Last year, when the ACLU went to the US Supreme Court to argue that the government had abused its spying capabilities and caused harm, the Supreme Court accepted the government’s argument that the ACLU couldn’t sue it in this instance because it lacked standing. In other words, the government’s refusal to provide information on who the NSA had targeted made it impossible to claim someone had been targeted, which in turn made it impossible for anyone to claim they had standing to bring a case before the court.
The Supreme Court decision that dismissed the case states: “If the government intends to use or disclose information obtained or derived from” surveillance authorised by the 2008 law “in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition.”
Thus far, that hasn’t been happening. Instead, federal prosecutors have been refusing to disclose how they gain the information they’ve submitted as evidence in criminal proceedings. Allowing Yahoo to disclose more information, even if the information is anonymised and redacted, is a vital step towards building an understanding of how these laws are currently used in America.
The real-world consequences of spying
Meanwhile, in Russia, two Parliament members have introduced bills that would compel Google and Microsoft to conform more closely to Russian standards. In theory, this would tighten the use of Russian information and limit the degree to which Google, Microsoft, and other companies can share data with the NSA. In practice, it’s expected that the corporations would be forced to grant backdoor access to Russian law enforcement.
Russian Parliamentary members are also pushing for bills that would require Microsoft and Google to store Russian data on servers located within Russia itself, presumably to prevent the NSA from tapping the information. The nation has also revived its call for the UN to assume control of the Internet.
US companies are pushing back against the idea that they can’t be trusted with user data, but the hard reality is this: If the NSA has made at least a token effort to protect the rights of US citizens, it’s had zero compunction about delving into foreign data. That kind of one-sided relationship is justifiably troubling to a number of nations, and they could make life very difficult for the US when it comes to retaining long-term control of the Internet.
As things stand, the most popular web services on the planet offer foreign citizens no protection whatsoever if the NSA suspects untoward activity. Should Snowden continue releasing documents said to be in his possession, the damage to the United States’ reputation as a neutral arbiter could be left in tatters. Granted, much of this is political grandstanding, some of it by countries with their own extensive national security programs – but that makes the potential damage from such actions no less real.