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FBI/Apple privacy fight left out a major player: the data carriers

Taylor Armerding | June 30, 2016
In the conflict between government surveillance and individual privacy, it is not just the data on devices that is at stake. It is the data that travels to and from the devices. That is where the communications carriers come in

The recent standoff between Apple and the FBI over the agency's demand that the company provide a way to unlock the iPhone of a dead terrorist, was "resolved" when the FBI "bought a tool," according to Director James Comey.

But that, of course, didn't resolve the fundamental, ongoing conflict between the government's need for digital surveillance capabilities to assist with law enforcement and national security on one side, and the American commitment to personal privacy on the other.

It also didn't even address the role of a third major player in such conflicts: The carriers of the data on the Internet "backbone."

But that role is now being addressed in Congress. A Senate Judiciary Committee hearingTuesday included recommendations for amendments to the law that regulates government collection of data from communications carriers - the FISA Amendments Act (FAA).

The FAA is not up for renewal until the end of 2017, but committee Chairman Sen. Chuck Grassley (R-Iowa) said in his opening remarks that, "I'd like to begin the conversation about it well in advance of that."

Not much gets to or from a smartphone, or any digital device, without the involvement of major Internet companies - like Microsoft, Yahoo, Google, Facebook, Paltalk, YouTube, AOL, Skype and Apple - whose infrastructure is used by hundreds of millions of people around the world to communicate, to search the Web, to shop, to do banking and any number of other things that involve the transmission of data.

The National Security Agency (NSA) under what is known as PRISM - an element of the Foreign Intelligence Surveillance Act (FISA) - has been able to request user data from those companies since 2007, and they were compelled by law to comply.

But among the explosive allegations in 2013 from former NSA subcontractor Edward Snowdenwas that the agency had also accessed the overseas, internal networks of U.S. companies in secret, collecting data in bulk.

The mission of the NSA is embedded in the words of FISA - the collection of foreign intelligence. But Snowden and other critics have been saying for years that since 9/11, it has also included the collection of data on American citizens, sometimes with the cooperation of American data carriers and sometimes without their knowledge.

To say that this made things awkward for companies that are forever promising their customers that, "your privacy is our highest priority" is an obvious understatement. First they denied knowing anything about PRISM, but later fought for the right to be able to acknowledge government data "requests" in the name of transparency.

They already had legal liability protection, however. Lee Tien, senior staff attorney with the Electronic Freedom Foundation (EFF), noted that in 2008, "Congress passed, and the president (Bush) signed, a bill that immunized the telecoms against any liability.


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