Data privacy proponents are counting on the public’s right to know

April 20, 2016

In the latest front in the great data privacy war, the Electronic Frontier Foundation sued the Justice Department on Tuesday, demanding that the government reveal whether it has obtained orders from the Foreign Intelligence Surveillance Court (FISC) compelling private companies to help investigators break into customers’ cellphones and devices.

The complaint, filed in federal court in San Francisco, contends that the 2015 USA Freedom Act requires the government to disclose FISC opinions, rulings and orders “to the greatest extent practicable.” EFF said it’s not clear whether the court that authorizes secret surveillance has issued orders directing companies like Apple and Microsoft to assist in decryption – the suit cited news stories suggesting the government has used the Foreign Intelligence Surveillance Act (FISA) to require tech companies to reveal encryption source code – but said the public has a right to know if it has.

“EFF seeks to inform the public about the extent to which the government has used FISA and the FISC to compel private companies into providing assistance that would undermine the safety and security of millions of people who rely on software and the devices that run them, such as the iPhone, every day,” the complaint said.

The EFF suit, as you know, follows Apple’s celebrated resistance to the government’s ex parte applications for All Writs Act orders compelling it to assist in busting security, as well as Microsoft’s April 14 lawsuit seeking a declaration that the company can inform customers when the Justice Department compels Microsoft to turn over cloud storage data. (Facebook, as the Wall Street Journal’s Law Blog pointed out last week when Microsoft filed its complaint in federal court in Seattle, has been litigating for a few years over gag orders barring it from disclosing a New York district attorney’s search warrants for customer information.)

What the cases all have in common is transparency. Government investigators believe the public interest is best served when they operate in secret. EFF and the tech companies believe the public, which includes their customers, should be aware of the government’s activities. “It’s important to be frank and honest with the people,” said EFF senior staff attorney Mark Rumold. “And we’ve seen the government is anything but.”

Rumold reminded me that raising public awareness of law enforcement demands for data will not, on its own, safeguard privacy. But he is confident that when people understand the government can force private companies to help investigators obtain access to supposedly protected data, the public will push back, just as it did when Edward Snowden revealed widespread surveillance of phone data in 2013. After Snowden’s revelations, Congress imposed some restrictions on the government’s right to collect bulk data.

Legislators have debated whether to require private businesses to help government investigators access data. So far, as U.S. Magistrate Judge James Orenstein of Brooklyn discussed in his opinion refusing to grant an All Writs Act order compelling Apple to break into a customer’s iPhone, Congress has not acted to define the obligations of private companies from which the government has demanded customer data. In the long run, privacy advocates hope public opinion pushes Congress to keep private businesses out of government investigations.

Thus the recent onslaught of cases to catch public attention. “The first step is understanding what’s going on,” Rumold said. The backlash comes afterward – and EFF and the tech companies are confident it will be against the government and not them.

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