The disclosures of former CIA contractor Edward Snowden, who this week was granted temporary refugee status in Russia, suggest that the government has spent years tapping the very thoughts of Internet users, as George Dyson puts it in a recent essay on Edge.org.
It’s hard to believe that any citizen, apprised of his rights, would consent to having his mind regularly read by the government. So why did the Internet companies, through which we now externalize mental processes in the form of Web searches, e-commerce, and verbal and visual communication, so quickly sell us out? Why didn’t any one of the communication giants refuse, citing...well, citing anything, from the Bill of Rights to the Magna Carta to the law of the land to common sense?
Well, it seems one company did.
“There has been one instance. . .” writes Reggie B. Walton, presiding judge in the super-secret U.S. Foreign Intelligence Surveillance Court, in a letter this week.
One instance. One lone instance in 2008 when an American communications company refused to throw open its servers, systems, databases, profiles, mail and messages to complete government surveillance. One instance in which a tech company complained that such bulk spying on ordinary Internet citizens can’t be legal. (Spoiler, and disclosure: It’s the site you’re on, and the one that pays my salary.)
Walton in full: “There has been one instance in which the Court heard arguments from a nongovernmental party that sought to substantively contest a directive from the government.”
What company would contest a directive from its government—and refuse to join the massive data-fracking initiative known as PRISM? Was it Google, Apple, Facebook, Microsoft, YouTube, AOL, Skype?
Surprise! It was Yahoo, Inc. That’s right: in 2007, the government ordered Yahoo to comply with
the then-new Protect America Act. That act, which was signed into law in August of that year, was written by President George W. Bush’s intelligence advisors and expanded the government’s capacity to intercept foreign digital communications. In the media, the initiative was widely known as “the wiretap law,” and thus seemed to apply chiefly to telephone landlines that can literally be fitted with electrical taps.
But it was the Internet the government had in its sights. The Internet and not the phones. And not just “foreigners” on the Internet, either.
The 2007 bill, in fact, enabled the National Security Agency, without a court order, to monitor electronic communications among people in the U.S., including American citizens, and people "reasonably believed to be outside the United States." That’s a big, broad, sticky net.
At the time, spokesman for the Bush White House Tony Fratto said that the bill was not designed to dial up eavesdropping on Americans or "to affect in any way the legitimate privacy rights" of U.S. citizens.
Was that reassurance offered before or after the government resolved to press its “directive” on Yahoo? Maybe we’ll never know. But thanks to Judge Walton’s letter this week, which answered pointed questions about the enshrouded Foreign Intelligence Surveillance Court posed by judiciary committee chairman Senator Patrick J. Leahy, we do know that Yahoo is the only company approached by the government that refused to comply with surveillance directives so strenuously that it got a hearing from the Court.
The only company. Hopefully, you’ll forgive this brief outburst of esprit de corps, because this show of protest, despite its failure, seems worth calling out, if not celebrating.
Going forward, Yahoo has recently filed and been granted a motion for publication of the Court’s decision, which Yahoo appealed. If you push hard enough for a hearing, you at least get a publishable decision. The Court’s decision, once declassified and public, will give a much-needed glimpse at the government’s justification of PRISM.
"Once those documents are made public, we believe they will contribute constructively to the ongoing public discussion around online privacy," a spokesperson for Yahoo said, in a statement to -- well, Yahoo.
The push to declassify this piece of the government’s justification of PRISM—a program which seems, on its face, unjustifiable—is a species of laudable corporate activism. Yahoo should be proud twice. First, it questioned the legality of PRISM, which made the presumed-private speech, acts and thoughts of so many of us transparent to the government. And second, by insisting that the PRISM-justifying document be published, it has insisted on at least a measure of reciprocal transparency from the government.