In the wake of the Washington Post
leaks, there's been a great deal of discussion over how, exactly, companies like Google share data with the government. The original report implied that the NSA
has direct datacenter access and either grabs the information directly from Google or was copying and analyzing traffic as it flowed through the tubes. Google has gone on the offensive in recent days to simultaneously clarify its own cooperation with the NSA and to push for greater transparency where access requests are concerned.
It should be noted, in fairness to Google
, that this greater transparency push lines up with the company's pre-Snowden statements. In recent months, Google has filed suit against the gag orders routinely imposed on companies and fought for the right to disclose the nature and number of information "requests" it receives. The company's advocacy on this issue isn't new, even if it's now more prominent.
According to Google, the NSA has no direct access or oversight into the company's data centers. Instead, the information the NSA requests is delivered by hand or via secure FTP. A company spokesperson stated that while the government has asked Google to provide it with easier access tools, "We have been asked to do things in the past and we have declined.”
What Google does
do is answer requests via secure FTP or deliver documents by hand. The NSA therefore has access to Google data, yes, but only in a limited fashion. Google is the first company to clarify things to this degree; Facebook, Yahoo, and Microsoft have remained silent, as has Apple.
Don't Miss The Point:
The details of how the NSA asks Google for information are interesting, but ultimately not the real concern. The real problem here is oversight
. National Security Letters require Google to turn over so-called transactional data, or metadata. They carry gag orders that block Google from acknowledging that the request was even made. The FISA court has been criticized by former members of the NSA as being "a kangaroo court with a rubber stamp."
Unlike the standard court system, the FISA court isn't adversarial. The only parties present are the federal government and the judge and FISA judges almost never block warrant requests. All of the efforts to challenge FISA and pour sunshine into these systems in the wake of the warrantless wiretapping scandals six years ago were defeated by the government, with the explicit support of the US judicial system.
Think about what that means for a second. When the NSA or FBI shows up with a warrant, Google is legally obligated to turn over this information -- and, until last month, was barred from revealing that it had been ordered to do so. The company claims that it takes steps to limit what information the government can access, but while that may be true, it doesn't address the problem that the government can demand access to data through a process that enjoys zero independent oversight.
For the NSA, this is something of a non-issue. If it wants data on John Doe, it can go to FISA and get a warrant. We know such warrants have
standards but not what those standards are. When Google says "Get a warrant" and the NSA says "We have warrants on tap," Google cannot safeguard your information to any meaningful degree without committing perjury. It doesn't matter if Google turns over the data on reams of paper, flash drives, or with network access. The point is, the government can intiate these mandatory data dumps at will, with no need to demonstrate cause to a traditional court. And Google, at present, is legally barred from discussing it.
Even if you trust the NSA and FBI, the freedom to discuss how these organizations are using their legal powers is essential to the preservation of democracy. A country that cannot examine such information cannot evaluate if the organizations are serving their intended purpose. Transparency and accountability matter, no matter who you vote for.