On June 6, 2013, Edward Snowden
-- holed up in a Hong Kong hotel room with two Guardian reporters and a
filmmaker -- told the world about a secret surveillance program that let the US
National Security Agency grab people's emails, video chats, photos and
documents through some of the world's biggest tech companies.
That program was called Prism,
and the journalists revealed the extent of its reach just one day after
reporting that the NSA was collecting phone records in bulk from Verizon.
Top-secret slides intended for NSA senior analysts -- and leaked by Snowden --
listed Apple, Google, Microsoft, Yahoo, AOL, Facebook and a video chat company
called PalTalk as willing partners in the surveillance program. The public
uproar was immediate, even as all of the companies denied giving the NSA
unfettered access to such data.
Snowden
Leaks
Prism was just one of Snowden's
many revelations, but its disclosure kicked off a crisis of confidence and
conscience throughout the technology industry. In the three years since
Snowden's initial leak, Apple, Google, Microsoft, Facebook and Yahoo have
become some of the biggest advocates of consumer privacy. They've beefed up
encryption and other safeguards in their products and services. A few have
challenged the US government in courts -- and in the court of public opinion --
in the debate over national security and personal privacy.
"These companies are now
engaged in a genuine commitment to demonstrate that they're willing to protect
privacy even against the US government," says Glenn Greenwald, who broke
the Snowden story while a reporter for the Guardian. "That has really
altered the relationship between the US government and these tech companies,
and made it much, much harder to spy."
That debate reached a crescendo
early this year when Apple resisted a court order forcing it to write software
that would have circumvented encryption built into an iPhone 5C used by a
terrorist in San Bernardino, California. Such software "would be the
equivalent of a master key, capable of opening hundreds of millions of locks --
from restaurants and banks to stores and homes," CEO Tim Cook wrote in an
open letter in February to customers. "No reasonable person would find
that acceptable."
Good
for Business
Since 2013, Snowden has been
called everything from a whistleblower and patriot to a criminal and traitor.
That characterization seems to
be fluid. Take former US Attorney General Eric Holder. He oversaw the
Department of Justice when it unsealed charges against Snowden on two counts of
violating the Espionage Act of 1917 and theft of government property.
But earlier this week, Holder
told political commentator David Axelrod he thought Snowden had performed a
"public service by raising the debate that we engaged in and by the
changes that we made." That said, Holder also believes Snowden should
return from his self-imposed exile in Russia to stand trial for his actions.
"I think there has to be a
consequence for what he has done," Holder says. "But I think in
deciding what an appropriate sentence should be, I think a judge could take
into account the usefulness of having had that national debate."
Holder's softening perspective
shows just how much the debate colours our worldview.
Privacy
Concerns
Consider the tech giants'
public stance on privacy, which coincidentally (or not) happens to be good for
business, says Greenwald. He believes they're "petrified" of being
seen as NSA collaborators and of losing customers to rivals based outside the
US.
Yahoo provided the first
glimpse of pushback against surveillance demands. As the public uproar began in
2013, company higher-ups immediately saw the value of telling the public
another story: Yahoo had its customers' backs. They even had proof: The company
had already fought and lost a constitutional challenge to the law that
authorizes Prism's collection of user data.
In 2007, the online media portal
and email service fought a court order under Section 702 of the Foreign
Intelligence Surveillance Act Amendments Act that compelled it to disclose the
content of email and other communications so long as 51 percent of the people
targeted were foreign.
A week after Snowden spilled
the beans on Prism, Yahoo filed a request to unseal documents from that
challenge. Why the rush to go public? To make sure Yahoo's 225 million monthly
email users didn't lose their trust in the company, says Chris Madsen, Yahoo's
assistant general counsel.
Or put another way, to protect
business. All of the other companies named as Prism participants faced the same
issue."A failure to do that in
this particular industry means a significant loss in market share," Madsen
says candidly.
Battle
Lines
But losing customers wasn't
these companies' only concern. The tech industry sincerely wants to push back,
says Snowden's attorney, Ben Wizner of the American Civil Liberties Union.
That's because Snowden disclosed the frightening power of the NSA's other
technology efforts. These include the Muscular program, which exploited weak
points in Yahoo's and Google's data centers to scoop up unencrypted data, and
Bullrun, which used superfast computers to decipher encrypted emails and documents.
"There was material in the
Snowden disclosures that was genuinely shocking," Wizner says. "That
radicalized a lot of people in the technology community."
Encryption became the tech
industry's best defense in its advocacy for consumer privacy.
Apple put itself at the
vanguard of that battle, upgrading its Mac OS and iOS mobile software with
stronger encryption. It also showed a very public willingness to defy the FBI
and courts that demanded Apple creates backdoors into its most important
product. "When the FBI has requested data that's in our possession, we
have provided it," Cook wrote in an open letter to customers on February
16. "Apple complies with valid subpoenas and search warrants....We have
also made Apple engineers available to advise the FBI, and we've offered our
best ideas on a number of investigative options at their disposal."
Tech
Giants Stand Strong
But the company won't bend on
encryption, according to Cook, signaling his willingness to challenge the FBI
in front of a federal judge. In March, more than 40 top tech companies signed
amicus briefs supporting Apple as it prepared to face the government in a court
case that, ultimately, never took place. Then last month, Apple rehired crypto
expert Jon Callas, who co-founded PGP (Pretty Good Privacy), Silent Circle and
Blackphone. Callas had worked for Apple in the 1990s and again between 2009 and
2011.
]
Google is fighting its own
encryption battle in several undecided court cases related to phones running
its Android mobile software.
That means we can expect
governments to escalate their efforts to get around encryption, says Greenwald.
"It's going to be like an arms race," he says. As governments develop
new tools for spying, "private companies and privacy activists [will try]
to use math to build a wall of numbers, essentially, around people's
communication."
That's how it should be, says
Denelle Dixon-Thayer, chief legal and business officer at Mozilla, which
coordinates the development of the Firefox open-source web browser.
Governments spy, she says.
"It's not our job to make that easy for them."
The
Great Debate
Snowden's revelations did more
than pit the tech industry against government and law enforcement, and
spotlight the warring demands of personal privacy and national security.
Ironically, even unexpectedly,
it also made the US government more transparent about its efforts. Less than
two months after those first disclosures in 2013, the office of the Director of
National Intelligence declassified documents explaining the government's bulk
collection of US phone records.
In March 2014, President Barack
Obama said that the government should stop acquiring phone data in bulk from
the phone companies. That June, the Director of National Intelligence released
its first annual transparency report, revealing more than 1,760 court orders to
collect personal data.
In November 2015, five public
advocates, all private attorneys with expertise in privacy law, began advising
the courts on ways to minimize the impact of foreign surveillance on people in
the US.And last month, Reuters
reported Congress no longer supported draft legislation that would have let
judges force tech companies to help law enforcement crack encrypted data.
None of this means the US and
other governments will end their widespread surveillance. It does, however,
signal a degree of openness in telling the public how often the US goes after
that data.
"Government officials have
been more willing to engage in a conversation," says Margaret Nagle,
Yahoo's head of US government affairs. "That has made it increasingly
important that providers engage in that conversation as well."
It's
a Beginning
Snowden says his goal wasn't to
personally end surveillance. It was to alert people that surveillance was
actually happening.
"The public needs to
decide whether these programs and policies are right or wrong," Snowden
says in a video published by the Guardian in June 2013. "This is the
truth. This is what's happening. You should decide whether we should be doing
this."
