Are some companies ‘yes men’ when foreign governments ask for user data?

Once you start looking at which countries are requesting data from US companies, the next obvious (and critical) question is: how do companies respond to those requests? This is largely a matter of company discretion because the Electronic Communications Privacy Act does not apply to requests for user data from foreign governments. Without laws governing this important issue, foreign users are reliant on due diligence and good will by individual companies. This ad hoc approach means that different companies can have quite different compliance rates for the same countries. Continue reading Are some companies ‘yes men’ when foreign governments ask for user data?

International data privacy: what we need is an industry transparency report

Cross-posted from https://cyberlaw.stanford.edu/blog/2014/05/international-data-privacy-what-we-need-industry-transparency-report 

GoogleYahoo!, MicrosoftTwitterAppleDropboxLinkedIn, and Pinterest all publish transparency reports.  WordPress is the latest company to join the party, recently publishing their first transparency report.   However, it’s difficult to see trends and anomalies when the information is scattered across multiple individual company reports.  In order to get a comprehensive view of what is happening, we need to pull all of these fragments into a comprehensive picture.  We need an internet industry-wide transparency report.

To create a kind of hacked industry transparency report, I have consolidated the July-December 2013 transparency data from the main internet companies.  There is such a wealth of information to pore over and slice and dice in different ways that I will separate the analysis into a series of blog entries.  My interest is the international aspect, so I will focus on requests from foreign law enforcement.  This post will outline some of the key themes emerging from my comparison. Continue reading International data privacy: what we need is an industry transparency report

Whistleblowing about government surveillance: political offense or serious crime?

[cross-posted from http://cyberlaw.stanford.edu/blog]

It seems like the world has been turned upside down when a US citizen flees to China seeking political asylum.  And yet Edward Snowden is apparently hiding out in a secret location in Hong Kong after revealing that he is responsible for the leaked information on the US government’s PRISM program of surveillance.  He explains his choice of refuge as being based on Hong Kong’s reputation for defending freedom of speech.  He is also apparently considering Iceland as another potential refuge.  But if the US chooses to prosecute him, will he be able to avoid being sent home to face charges?  A key part of the answer lies in whether his leaking of official secrets qualifies as a ‘political offense’.

Continue reading Whistleblowing about government surveillance: political offense or serious crime?

One heck of a timely UN report on government surveillance of communications

If it had happened on House of Cards, you’d have enjoyed the theater of it, but figured that the writers had taken some artistic license in the timing.  I mean, it just doesn’t happen in real life that the UN releases a report on the dangers of government surveillance on the internet immediately before the news breaks that the US Government has been conducting internet surveillance of previously unimagined proportions.  Critics could unkindly say this is because the UN is never ahead of the game, but in this case, you have to hand it to Frank La Rue – he has clearly authored an exceptionally timely report: Continue reading One heck of a timely UN report on government surveillance of communications

Trust us, we’re the Government – sharing evidence internationally

It’s the nature of academic articles that by the time they’re published you’ve almost forgotten that you wrote them, particularly if the journal is an annual.  It is therefore pleasantly surprising that as my article on ‘Sharing Evidence Across Borders:  the human rights challenge’ is published ((2012) 30 Aust YBIL 161), I find that the topic is still very much current and the questions raised are still relevant, possibly even more so than when I wrote it a couple of years ago.

Being able to transfer evidence between countries is essential for cross-border investigations and prosecutions.  Even aside from crime types that are obviously transnational in nature such as drug trafficking or international money laundering, everyday crimes are easily given a ‘transnational’ aspect if the criminals use international email providers, have a foreign bank account or if a key witness lives in another country.  Clearly, public policy dictates that investigations and prosecutions can’t be allowed to stop at the border.  To fill this gap Mutual Legal Assistance Treaties (MLATs), law enforcement cooperation and letters rogatory have developed.  However, transferring evidence into another jurisdiction can have significant human rights implications.

After authorities in one country hand evidence over to another country, they may lose control and visibility of how that evidence is used.  And yet, instinctively, it seems like a country should not be able to wash its hands of all responsibility after handing over evidence.  When legal cooperation is used to move people rather than evidence (ie extradition), there are very clear human rights protections.  An abolitionist country cannot extradite or deport a person to a country if there is a real risk that he or she may be subject to the death penalty.  Similar obligations arise if a country wishes to extradite a person to a country where there is a real risk of a person being subject to torture or to cruel, inhuman or degrading treatment or punishment.  However, there is no such obligation if one country provides evidence to another country and that country then uses the information to impose the death penalty, torture or other cruel, inhuman or degrading treatment or punishment on an individual.

Many see this as unjust and there is a temptation to extend the international law that applies to extradition to MLATs and law enforcement cooperation.  After all, the consequences for individuals can be just as dire when countries share evidence as when they cooperate for extradition.  However, if you carefully analyse the extradition jurisprudence and try to apply it to evidence-sharing, you encounter a number of significant logical and legal problems.

In order to be practical and politically-palatable, there must be limits on a country’s human rights obligations.  International human rights law obligations are therefore generally limited to persons within that country’s jurisdiction.  When evidence is provided to foreign countries, it usually affects individuals in the foreign country.  It is difficult to find a logical way to argue that those individuals are within the ‘jurisdiction’ of the country providing evidence.  There are a couple of unique situations in which international human rights law has been found to apply to individuals extraterritorially.  These include where an individual is under that country’s effective control (eg prisons operated in Iraq by allied forces) or for particular rights such as the issuing of a passport or the enforcement of a judgment in absentia.  When you analyse these extraterritorial situations, they seem to be fundamentally different from a person about whom a foreign country facilitates providing evidence.

I therefore argue that international human rights law does not create any obligations with respect to law enforcement cooperation or mutual legal assistance.  This is not to say that there should not be legal obligations, just that they do not currently exist under international human rights law.  Any attempt to create obligations needs to engage with the complexity of the issue, not just assume that the same rules that apply to extradition can be applied to evidence-sharing.

The treaties that create evidence-sharing relationships provide some protections by specifying situations in which the requested country may refuse to provide evidence.  Such situations include where the death penalty would be imposed or there is a real risk of torture.  However, this is permissive rather than mandatory.  Moreover, MLATs and agreements on law enforcement cooperation are negotiated on an ad hoc basis and there is no uniformity in approach.  In the end, it all comes down to the particular policies of the administration that negotiated the treaty and the policies in place at the time that it is asked to provide the evidence.

The government makes decisions about which countries it is appropriate to enter into evidence-sharing relationships with and on what terms.  There is also scope to make decisions about specific requests.  For example, the requested country may specify that evidence will only be provided if the other country gives certain assurances (eg not to impose the death penalty).  Enforcement of such undertakings is a diplomatic matter.  In this way, the responsibility to make the right decisions about who to do business with and on what terms is largely a matter for the executive.

The system is further complicated when third parties hold the requested evidence, and these parties have their own relationship with the owner of the information.  The most pressing current example is online records.  Companies such as Google and Facebook hold large amounts of user data and many of their users reside in foreign jurisdictions.  The relationship of trust between these companies and their users is a valuable part of their business.  Being a good corporate citizen and cooperating with law enforcement to combat crime may also be important, but the priorities are not necessarily always compatible.

This somewhat changes the assumption that evidence-sharing can be handled adequately on a purely diplomatic basis because you have an additional party with a different set of interests.  This is not a new problem; for many years, countries have been sharing bank and telephone records.  However, the scale of the issue has certainly grown, with users storing more and more personal data online and increasing numbers of these users being in different jurisdictions from the tech companies.

These companies can scrutinize the requests that flow through from the Department of Justice or law enforcement to ensure that the legal requirements have been met.  However, where the discretion is a matter for the executive, the companies have limited options.  It is for the government to decide whether the other country’s justice system is adequate or undertakings are sufficient.  Provided that the other legal requirements are met, the company is obliged to hand over their user’s information.  Essentially, the system is based on trust that governments will do the right thing.

The increasing role of third party holders of information brings another dimension to the question of civil liberties protections in international evidence sharing.  It means that there is a new voice in the debate.  While governments have tended to keep evidence sharing confidential, tech companies are increasingly going public about government requests for user data.  Companies may challenge government requests in the courts on behalf of their users and raise public awareness about any perceived deficiencies in the laws.  What has tended to be an obscure area of government practice where the lack of legal protections has gone largely unnoticed now has the potential to become an issue of public discussion and concern.

Transparency – but what are we seeing?

Now that Microsoft has come to the party and is publishing a regular transparency report, there is a meaningful amount of publicly-available data about government requests for online records.  Looking at the data from Google, Twitter, Dropbox and Microsoft side-by-side raises some interesting questions.

The trend towards publishing transparency reports is a welcome one.  It raises awareness and encourages users to think about what protections they’re entitled to and how private their online activities really are.  There are still some very noticeable gaps in the information available.  Facebook and Yahoo! store large amounts of personal data but are noticeably silent on the issue of transparency reports.  Perhaps they will follow in Microsoft’s footsteps and finally succumb to the pressure for transparency.

Consumer and privacy advocacy groups are alarmed at the increased volume of government data requests.  Back in January, EFF reported on the ‘troubling trend’ of the rise in government surveillance because there had been a 70% increase in requests for data since Google started releasing numbers in 2010.  Forums are awash with comments about government snooping and conspiracy theories.  Meanwhile, at last week’s Committee on the Judiciary Hearing, Richard Littlehale from the Tennessee Bureau of Investigation argued for calm in considering the increase in government requests.  He analysed the statistics as demonstrating that ‘just a tiny fraction of one percent of Google’s accounts were affected by government demands’.

Comparing the transparency reports of the different companies shows that Microsoft/Skype and Google are inundated with requests for data.  As you would expect, relative newcomers Dropbox and Twitter receive far fewer requests.  In 2012, there were 122,015 requests relating to Microsoft accounts, 15,409 requests relating to Skype accounts, 68,249 Google accounts, 2,614 Twitter accounts and 164 Dropbox accounts. Each of these statistics relates to the number of accounts affected.  As each user could have multiple accounts, this does not directly equate to the number of individuals affected but nonetheless gives a sense of the scale of the issue.

These are some pretty impressive numbers and they’re on the rise.  The volume of requests to Google has grown significantly even during the short 3 years that they have been publishing their transparency report.  Although the data is not available, it seems reasonable to assume that the other companies are also experiencing significant increases.  Just what do these statistics mean?  Is it time to sound the Orwellian alarm bells?

Of course, more users have been sending, posting and storing information online.  This comes not only from more users engaging with online products, but also through the expanded type of products being offered.  The growth in cloud computing and cloud product offerings such as Google Drive mean that there is more information being held by third parties.  Higher penetration of online products not only means more cute cats and emails home to Mom, but also more use by criminal elements.  This naturally piques the interest of law enforcement officers.

As law enforcement becomes more familiar with the use of online records as evidence, more officers appreciate its value and employ it as one of their investigative tools.  The process has also been simplified and demystified.  Only a few years ago, it was an impenetrable maze to try to work out how to request online records for most of the providers.  Now, many of the companies have publicly accessible guides for law enforcement.  This means that it’s not just the high-tech crime units that are aware of the ability and value in accessing online records, but also the local county sheriffs.

Upward trends in law enforcement requests for records from particular online products can also reveal that some applications are particularly attractive to criminal elements.  For example, in the past, certain messaging applications became havens for child pornography rings to the extent that the product was discontinued.  Criminals will always look for weaknesses in the system and loopholes where they feel that they can communicate with impunity.  Police will naturally want to follow these trends and pursue criminals by accessing these records.  At the same time, innocent users have a valid expectation of privacy over their communications.

This all means that more users are putting more information online and it’s being accessed by a wider range of law enforcement officers.  I don’t think this is necessarily alarming in itself – we are no longer in a society where people (innocent or criminal) handwrite their private documents and store them under lock and key in their filing cabinet and investigative techniques have to adjust accordingly.  However, it does mean that it is increasingly important to ensure that there are adequate systems in place for the way in which this information is stored, accessed and used.

The discussion of this issue is hardly in its infancy; reform of ECPA has been on and off the cards for years (culminating in the last-minute failure to pursue the legislative amendments at the end of last year).  At last week’s committee hearing, there was a new level of consensus that access to users’ content should only be through showing of probable cause.  However, underneath this veneer of agreement, each of the witnesses revealed important differences of opinion.  The Department of Justice advocated substantial carve-outs from the probable cause standard should be afforded for civil litigation.  The law enforcement representative had a wish list including access to SMS messages and mandatory time limits on compliance with government requests.  Questioning by committee members revealed that there was confusion about the difference between traffic data and content and a troubling lack of understanding about how services such as targeted advertising on Gmail accounts affects privacy.  As with most legislative reform, the devil is in the detail and there is a lot of work ahead before there can be agreement on a Bill.

Access to online records needs to be addressed now.  The uncertainties between different jurisdictions and the growing agreement that aspects of ECPA infringe the fourth amendment of the Constitution are unacceptable both from a user’s perspective and also from the commercial perspective of companies that have to navigate this legal minefield on a daily basis.  The law is certainly in need of reform and the problem is only going to get worse.  However, the statistics do not necessarily mean that we are in the grip of a government conspiracy.  While we are no longer in the 1986 world of the original ECPA, we are also a long way from George Orwell’s 1984.

What is the greatest risk to online rights – government, companies or anarchy?

Nick Merrill is building an internet service provider called Calyx. Calyx will be designed to encrypt user’s data in such a way that it’ll be inaccessible to anyone but that user. Which means that if the government asks for your browser history or emails, Calyx will be technologically unable to hand them over.’.

When I stumbled across this, I was horrified.  As a civil servant and government lawyer, I bridled at the blatant attempt to undermine the criminal justice process.  But then I read on and watched videos of Nick Merrill telling his story of fighting a national security letter requiring him to disclose details about one of the clients of his ISP company.  It is quite compelling to hear of his 6 year battle for recognition of his entitlement to speak with his attorney and his right to tell others that he was issued with a national security letter.  So Nick Merrell’s encrypted ISP project started to sound less like paranoia and more like a rational reaction.

Just this week, I read that at the recent Black Hat Conference, when the room full of internet and security professionals was asked who they trusted less, Google or the government, the majority raised their hands for Google.  This surprised me, given the deeply ingrained distrust of big government and led me to wonder whether we were sliding into a situation in which the public will not trust anyone with regulation of online activities.  Is the web to become a wild west of anarchy because we are too afraid to trust anyone with any form of monitoring or enforcement? Continue reading What is the greatest risk to online rights – government, companies or anarchy?