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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

"That means the companies no longer have to worry about whether they're acting lawfully, at least with respect to the privacy of their users. They only have to worry about satisfying the government's requests," he said.

None of multiple carriers contacted by CSO responded to requests for comment. But, with the "conversation" on the FAA under way, privacy advocates argue that government access to the data handled by those companies needs more explicit restrictions.

To accomplish that would require amending Section 702 of the FAA, which governs the collection of data by the NSA. Sen. Patrick Leahy (D-VT), ranking member of the committee, called Section 702 "an important tool" but also "extremely broad." He said while it is aimed at foreign surveillance, "it sweeps up a sizeable amount of information about innocent Americans who are communicating with those foreigners."

Elizabeth Goitein, co-director of the Liberty & National Security Program at the Brennan Center for Justice at New York University School of Law, was more specific.

She said under the current implementation of Section 702, the NSA is collecting vastly more than foreign intelligence.

To describe surveillance that acquires 250 million Internet communications a year as 'targeted' is to elevate form over substance," she said. "And on its face, the statute does not require that the targets of surveillance pose any threat ..."

That debate goes well beyond the hearing room. In a recent Hoover Institution essay, Mieke Eoyang, vice president of the National Security Program at the think tank Third Way, noted that the major telecoms and other communications companies are, "physical and legal gatekeepers (that) regulate government access to private information."

In an interview, Eoyang added that this is not just a domestic issue. "Those companies, compete in a global market," she said. "They want to safeguard national security, but must also reassure current and future customers, including those living overseas, that data privacy is a priority."

If the government treats the companies as just another surveillance target to exploit, business leaders will view the government as yet another unauthorized user to keep out. 

The Snowden revelations, she said, created a more adversarial relationship between the private and public sectors that needs to be repaired.

"If the government treats the companies as just another surveillance target to exploit, business leaders will view the government as yet another unauthorized user to keep out," she wrote.

Among her recommendations for amendments to the FAA is for the law to clarify that, "U.S. companies must filter data using court-authorized selectors (such as email addresses or phone numbers) before handing it over to government agencies."

Currently, she said, it is not clear who controls the filtering of data, although Section 702 of the FAA authorizes government to conduct so-called "upstream" surveillance, which means collection of information before it has been filtered.

 

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