Privacy Advisor

Justice Dept. To Allow Some Transparency; More Surveillance Programs Revealed

The Obama administration agreed to allow Internet companies to disclose more on law enforcement requests ahead of Obama’s State of the Union address and in the shadow of more Snowden revelations on U.S. and UK spy programs

January 28, 2014

By Jedidiah Bracy, CIPP/US, CIPP/E

Ahead of President Barack Obama’s annual State of the Union speech on what many in the privacy community know as Data Privacy Day, the Justice Department agreed Monday to let technology companies disclose more data to the public regarding national security requests. The agreement will allow companies—including Facebook, Apple, Microsoft, Google and Yahoo—to publish additional aggregate information, including, for the first time, Foreign Intelligence Surveillance Court (FISC) requests.

Every six months, with a six-month delay, companies will choose one of two options when disclosing such data. One format allows disclosure of specific law enforcement requests—such as the FBI’s National Security Letters—in ranges of 1,000. The other allows them to publish more specific number ranges—increments of 250—with multiple law enforcement request categories lumped together.

Facebook, Microsoft, Google, Yahoo and LinkedIn had sued the Justice Department for the right to disclose more data than was previously allowed but have agreed to drop their lawsuit. In a joint statement, the companies said, “We’re pleased the Department of Justice has agreed that we and other providers can disclose this information,” but added, “While this is a very positive step, we’ll continue to encourage Congress to take additional steps to address all of the reforms we believe are needed.”

Not everyone in Silicon Valley is pleased with the deal, however. Skyhigh Networks Chief Executive Rajiv Gupta said, “We’re missing the boat … This arguing about if it’s 250 or 1,000—I don’t know if that truly changes things,” The Wall Street Journal reports. The New York Times queries whether the larger Internet companies have handicapped startups in light of the new deal. Lavabit's Ladar Levison said, “While our courts are allowed to keep ethically dubious court orders secret, it will remain impossible to trust private data to American companies … As an American businessman, this reality is terribly upsetting.” 

What’s Next for President Obama and the State of the Union
After President Obama’s recent major speech on surveillance reform and an initiative to review Big Data’s impact on privacy, Politico reports on what might be heard in his State of the Union speech tonight. Electronic Privacy Information Center Executive Director Marc Rotenberg said, “I do think he has the opportunity to say something proactive in support of privacy, because as he himself said, you know, it’s not just about the NSA.”

But NSA and FISC reform are not the only reforms being called for by privacy advocates. The Hill reports that the American Civil Liberties Union, the Center for Democracy and Technology, Heritage Action for America and Americans for Tax Reform are calling on Obama to reform the Electronic Communications Privacy Act (ECPA): “One simple way for the president to assure Americans that he genuinely cares about privacy is by supporting the ECPA reform bills, thereby protecting the e-mail and other online communications of Americans from unjustified government intrusion.”

And there may be a shift in public perception of privacy and security. According to a new Associated Press-GfK poll, more than 60 percent of Americans said they value privacy over anti-terrorist security measures. There also appears to be a gap in sentiment based on age. Those under 30 tend to believe it’s important for the government to disclose more details of its programs, while those over the age of 65 say U.S. intelligence details should remain secret.

New Snowden Leaks Reveal More NSA/GCHQ Surveillance Programs

In two separate leaks from Edward Snowden, new documents reveal several previously undisclosed surveillance programs being conducted by the NSA and the UK’s GCHQ. According to an NBC News report, the British government can tap into and access data from cables transmitting the world’s web traffic to spy on user activity on some of the Internet’s most popular social media sites, including YouTube, Facebook and Twitter. Called “Squeaky Dolphin,” the program can exercise “Broad real-time monitoring of online activity” of YouTube videos and posts that are “liked” on Facebook. Representatives from Facebook and Google said they had not given the British agency permission to collect such data and were unaware of the programs.

The ACLU’s Christopher Soghoian said, “It’s one thing to spy on a particular person who has done something to warrant a government investigation, but governments have no business monitoring the Facebook likes or YouTube views of hundreds of millions of people.”

In a separate disclosure, The Guardian reports that the NSA and GCHQ target “leaky” phone apps, such as Angry Birds, to obtain user data. Collected information can include age, gender and location—and in some cases, users’ sexual orientation.

The disclosure is one more instance of government programs using commercial applications to collect user data.

Wired reports that the anonymous e-mail provider TorMail database was seized by the FBI last August, and according to the report, the agency is allegedly using data seized in a previous investigation to pursue additional investigations. “The tactic suggests the FBI is adapting to the age of Big Data with NSA-style collect-everything approach, gathering information into a virtual lockbox and leaving it there until it can obtain specific authority to tap it later,” the report states.

Read more by Jedidiah Bracy:
EU’s Reding Urging Reform to Move Forward; LIBE Committee Draft NSA Report Leaked
Federal Courts at Loggerheads in NSA Surveillance Cases; Snowden Disclosures to Continue in 2014
Federal Judge Rules NSA Phone Metadata Collection Program Likely Unconstitutional
Tech Biz Urging U.S. Lawmakers, Global Governments To Reform Surveillance Law