6 Ways Tech Companies' 'Reform Government Surveillance' Fails

The headquarters of the National Security Agency in Fort Meade, Md. Credit: National Security AgencyThe headquarters of the National Security Agency in Fort Meade, Md. Credit: National Security Agency

UPDATED with outside comment.

The newly unveiled public-relations campaign by top technology companies urging governments to reform Internet surveillance sounds noble, but other than to reassure foreign customers that American companies aren't the bad guys, it won't achieve much.

"It is time for the world's governments to address the practices and laws regulating government surveillance of individuals and access to their information," states ReformGovernmentSurveillance.com, a website sponsored and signed by AOL, Facebook, Google, LinkedIn, Microsoft, Twitter and Yahoo.

The same seven companies, plus Apple, placed a full-page advertisement in major American newspapers today (Dec. 9), consisting of an open letter to President Barack Obama and Congress asking the political leaders "to take the lead and make reforms that ensure that government surveillance efforts are clearly restricted by law."

Neither the website nor the ad mention the National Security Agency (NSA) by name, but the open letter says "the balance in many countries has tipped too far in favor of the state and away from the rights of the individual — rights that are enshrined in our Constitution."

MORE: Should You Trust U.S. Companies With Your Data?

"While the undersigned companies understand that governments need to take action to protect their citizens' safety and security," the website says. "We strongly believe that current laws and practices need to be reformed."

The website lists five principles, some directed at foreign governments, that the seven companies would like to see enshrined in surveillance reform:

— "Sensible" limits on governmental authority to collect user information.

— More independent legal oversight of information gathering by intelligence agencies.

— "Transparency about government demands" for information from private companies.

— Fewer government restrictions on "the free flow of information" (i.e. no Internet censorship) and no requirements for "service providers to locate infrastructure within a country's borders" (as Brazil may soon require).

— Standardization of national laws concerning government requests for user information.

It's hard to argue against any of those principles, which are so vague and universally acknowledged that it'd be easy for the NSA and its backers to argue that the agency already espouses them.

"The NSA believes it already complies with points 1-2-3," said Robert Graham, co-founder and CEO of Errata Security in Atlanta. "Point 4 is a direct response to Brazil's proposed laws to relocate data. Point 5 is asking for increased government control."

Furthermore, there are several reasons this ad, website and set of principles will add little to the effort to substantially reform the NSA, and do nothing to spread that effort overseas.

"It's crap marketing, [written] by marketing departments rather than revolutionaries," Graham said. "We don't need reform making it easier for corporations to comply with government surveillance, but a dismantling of the surveillance state."

1)The NSA will continue to find ways around encryption and other forms of communications secrecy.

Finding out things that other people don't want anyone to know is the agency's primary job, and it spends billions of dollars each year cracking encryption. No amount of protest from Silicon Valley will change that.

2) Despite the constant chatter of concern in the highbrow media, there doesn't seem to be a lot of outrage among ordinary Americans about NSA spying.

Nor is there much support among U.S. politicians for limiting the NSA's abilities, which have been carefully designed to be entirely legal. A handful of congressmen on the left and right have called for reform, but the majority will be content to let the status quo continue.

Obama has called for "self-restraint" on the part of the NSA, and he will push for minor changes, such as an adversarial process at the secret court that oversees NSA operations inside the United States. But the essential structure of NSA surveillance will remain the same.

The next president, whether a Democrat or a Republican, will be no different. Libertarians don't win many elections, and few politicians get votes by promising to expand civil rights when none have been demonstrably broken. 

3) The NSA will continue to get cooperation from telecommunication companies both here in the U.S. and overseas.

Until Google or Facebook lay their own global fiber-optic networks, they're at the mercy of the telcos, such as Verizon and AT&T, upon whose lines their content travels.

MORE: Can You Hide Anything From the NSA?

4) The tech companies involved are being hypocritical.

Many of the companies make money by knowing as much as possible about their users, and then selling that information to advertisers.

Facebook and Google know a lot more about, and have much more interest in, the average American than the NSA does. Meanwhile, Microsoft has let the NSA monitor Skype calls.

"I think every single Google employee I follow [on Twitter] just posted the same link about gov surveillance," tweeted Australian security researcher Matthew Dowd today. "Only Google is allowed to surveil!"

5) Vladimir Putin will laugh at this.

The Russians, Chinese, Iranians and North Korean governments don't care about transparency, limits on information gathering or legal oversight. Even friendly countries with substantial intelligence operations, such as France and Israel, will ignore this feel-good manifesto. Why should the NSA or its British partner, GCHQ, be crippled by adhering to it?

6) American tech companies are more worried about losing customers overseas than they are about NSA and GCHQ spying.

In the prepackaged quotations appended to the website, Microsoft's general counsel summed up the true reason for this effort: "People won't use technology they don't trust. Governments have put this trust at risk, and governments need to help restore it."

Follow Paul Wagenseil at @snd_wagenseil. Follow Tom's Guide at @tomsguide, on Facebook and on Google+.

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  • Chris Dupres

    "Nor is there much support among U.S. politicians for limiting the NSA's abilities, which have been carefully designed to be entirely legal. A handful of congressmen on the left and right have called for reform, but the majority will be content to let the status quo continue."

    This isn't true at all. The Amash Amendment failed by like 12 votes in the house, and saying they have been 'carefully designed to be perfectly legal' is just parroting DNI talking points. They have routinely prevented court challenges on technicalities in order to keep the determination of 'perfectly legal' from being tested. That's a BIG difference.
  • f-14
    what idiot at these companies wrote this "make reforms that ensure that government surveillance efforts are clearly restricted by law." ?

    it's called the bill of rights, it was the first reform law written here's why:
    The Preamble to The Bill of Rights

    Congress of the United States
    begun and held at the City of New-York, on
    Wednesday the fourth of March, one thousand seven hundred and eighty nine.

    THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

    clearly spelled out:
    Amendment IV

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Amendment V.....nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    Amendment VIII
    Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

    Amendment X
    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    Unconstitutional Official Acts

    16 Am Jur 2d, Sec 177 late 2d, Sec 256:

    The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must be In agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows:

    The General rule is that an unconstitutional statute, though having the form and name of law is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of it's enactment and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.

    Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it.....

    A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the lend, it is superseded thereby.

    No one Is bound to obey an unconstitutional law and no courts are bound to enforce it.

    Jon Roland:

    Strictly speaking, an unconstitutional statute is not a "law", and should not be called a "law", even if it is sustained by a court, for a finding that a statute or other official act is constitutional does not make it so, or confer any authority to anyone to enforce it.

    All citizens and legal residents of the United States, by their presence on the territory of the United States, are subject to the militia duty, the duty of the social compact that creates the society, which requires that each, alone and in concert with others, not only obey the Constitution and constitutional official acts, but help enforce them, if necessary, at the risk of one's life.

    Any unconstitutional act of an official will at least be a violation of the oath of that official to execute the duties of his office, and therefore grounds for his removal from office. No official immunity or privileges of rank or position survive the commission of unlawful acts. If it violates the rights of individuals, it is also likely to be a crime, and the militia duty obligates anyone aware of such a violation to investigate it, gather evidence for a prosecution, make an arrest, and if necessary, seek an indictment from a grand jury, and if one is obtained, prosecute the offender in a court of law.
  • f-14
    in addition any person committing the following: If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States,.....or by force to prevent, hinder, or delay the execution of any law of the United States,...."
    is guilty of treason and getss to spend up to 25 years in prision just on that charge alone, because this affects soldiers and their morale and also during a time of war and by a organized group (democrats and republicans among the main offenders) additional treason laws were broken and additional fines and charges carrying similar sentences can be cumulatively added.
    USC › Title 18 › Part I › Chapter 115 › § 2384 ›

    18 USC § 2384 - Seditious conspiracy
    US Code
    If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

    The law cannot save those who deny it but neither can the law serve any who do not use it. The history of injustice and inequality is a history of disuse of the law. Law has not failed--and is not failing. We as a nation have failed ourselves by not trusting the law and by not using the law to gain sooner the ends of justice which law alone serves.
    ~ Lyndon B. Johnson ~