The same technology companies that the US intelligence community has relied upon to disclose email records are now refusing to keep surveillance requests secret and informing customers when they are the subject of such requests.
In the nearly ten months since former US National Security Agency contractor Edward Snowden revealed extensive surveillance efforts on everyday Americans’ online activity, the companies that were forced to facilitate that surveillance have come under harsh public scrutiny.
The embarrassment ignited a series of comments from executives at Google and Facebook, among others, calling on the NSA and other agencies to either stop forcing them to provide the communications that customers trust them with, or allow them to be more transparent.
Now, according to a Thursday report in the Washington Post, Apple, Microsoft, Facebook, and Google have updated their policies to routinely notify customers when law enforcement has requested information about them.
Yahoo enacted such a change in July, with the Post reporting Thursday that companies “have found that investigators often drop data demands to avoid having suspects learn of inquiries.”
With such influential companies announcing that they will essentially ignore the warning attached to subpoenas asking them to keep knowledge of the requests to themselves, experts say other companies that spend less time in the public eye will be more willing to do so.
“It serves to chill the unbridled, cost-free collection,” Albert Gidari Jr., a partner at the firm Perkins Cole who represents multiple technology companies, told the Post. “And I think that’s a good thing.”
Not all requests will be made public. Orders from the Foreign Intelligence Surveillance Court, which has denied only one NSA request in five years, will still be kept classified, as will National Security Letters from the FBI.
Peter Carr, a spokesman for the US Department of Justice, warned that the companies’ divergence from the norm constitutes a massive security flaw. He told the Post there is at least one recent example in which an early disclosure put a cooperative witness in danger, though he refused to provide any further detail.
“These risks of endangering life, risking destruction of evidence, or allowing suspects to flee or intimidate witnesses are not merely hypothetical, but unfortunately routine,” Carr said.
Law enforcement’s job is also complicated by the growing number of magistrate judges who are skeptical of the government’s requests. The judicial ideology has quietly spread to courts through the country, frustrating prosecutors as much as it has excited civil libertarians.
Perhaps the most outspoken opinion, though, came from Washington DC Magistrate Judge John M. Facciola, who ruled against government requests to access the Facebook page of Navy Yard gunman Aaron Alexis and a request to search the iPhone of a Georgetown University student accused of making ricin.
Facciola has consistently sought narrower, more specific requests from investigators, as evidenced by an April ruling in a case unrelated to the two aforementioned investigations.
“For the sixth time,” he wrote, as quoted by the Post, “this court must be clear: if the government seizes data it knows is outside the scope of the warrant, it must either destroy the data or return it. It cannot simply keep it.”