I have often pointed out that we should never expect corporations to stand for freedom against big government. Corporations want to reach mass markets and avoid costs. Big government can grant corporations monopolies and also cost them greatly by punishing them.
So I’m pleasantly surprised to learn that some corporations are beginning to defy the national security state. According to the Washington Post: “Apple, Facebook, others defy authorities, notify users of secret data demands.”
Major U.S. technology companies have largely ended the practice of quietly complying with investigators’ demands for e-mail records and other online data, saying that users have a right to know in advance when their information is targeted for government seizure.
This increasingly defiant industry stand is giving some of the tens of thousands of Americans whose Internet data gets swept into criminal investigations each year the opportunity to fight in court to prevent disclosures. Prosecutors, however, warn that tech companies may undermine cases by tipping off criminals, giving them time to destroy vital electronic evidence before it can be gathered.
Fueling the shift is the industry’s eagerness to distance itself from the government after last year’s disclosures about National Security Agency surveillance of online services. Apple, Microsoft, Facebook and Google all are updating their policies to expand routine notification of users about government data seizures, unless specifically gagged by a judge or other legal authority, officials at all four companies said. Yahoo announced similar changes in July.
As this position becomes uniform across the industry, U.S. tech companies will ignore the instructions stamped on the fronts of subpoenas urging them not to alert subjects about data requests, industry lawyers say. Companies that already routinely notify users have found that investigators often drop data demands to avoid having suspects learn of inquiries.
“It serves to chill the unbridled, cost-free collection of data,” said Albert Gidari Jr., a partner at Perkins Coie who represents several technology companies. “And I think that’s a good thing.”
The Justice Department disagrees, saying in a statement that new industry policies threaten investigations and put potential crime victims in greater peril.
Before anyone gets too excited, the story points out that the companies are still obeying gag orders where those orders have the force of law. Data requests from the FISA court are kept secret from the person being searched. Administrative subpoena’s from the FBI also come with gag orders. The companies are still submitting to the law. They simply aren’t cooperating with mere requests.
Why are these companies no longer cooperating as they once did? I think Edward Snowden has a lot to do with it. Facebook, Apple, and other tech companies don’t want to make the government unhappy, but neither do they want the populace to hate and despise them. Furthermore, they are losing international business as foreign customers assume that any data they store with American companies will be available to the U.S. government. Showing some moderate amount of independence helps the companies heal their reputation, they hope.
Is it possible that truly harmful criminals might get away with crime because of this new policy? Sure. But that hardly matters. A person being searched by the government is not a convicted criminal. He’s not even yet officially charged with anything. The company has not basis for treating a customer as if they know he is guilty.