The defense the US Government has used to defend and justify its recently disclosed surveillance activities is that such efforts focus solely on identifying those outside the United States who seek to harm the country. Certainly, the Fourth Amendment protects US citizens against unwarranted search and seizure. Foreigners are not offered this protection. According to Section 702 of the Foreign Intelligence Surveillance Act (FISA), the US Government may, therefore, conduct surveillance activities that target persons reasonably believed to be located outside the United States.
Not surprisingly, that has had a chilling effect on citizens and firms in other countries who might, in the past, have used the services of US Internet firms. For example, according to this ComputerWorld UK article from late July, a recent survey conducted by the Cloud Security Alliance, an industry group of firms that provide and consume cloud services, found that 10% of 207 officials at non-US firms have canceled contracts with US cloud service providers.
This week, Mark Zuckerberg and Marissa Mayer weighed in on their impressions of the fallout from PRISM, Snowden, and NSA surveillance. Mayer, CEO of Yahoo, described the obligation US companies have to provide the government the data it requests or else risk treason. Zuckerberg, the founder and CEO of Facebook, was less measured in his remarks, saying “the government blew it” in the days following the Snowden disclosures, because it thoroughly alienated his and other US Internet companies’ customers by suggesting that all communications from non-US-citizens were fair game. In fact, Yahoo and Facebook filed suit against FISA this week demanding that the Government’s requests for data be limited in focus, specific in details, and publicly documented so that their customers may see exactly what has been requested and will be provided.
The surveillance programs the NSA has been conducting cast a broad net. They do not target specific persons but instead gather vast quantities of data that it can later mine for suspects. As part of its haul, there is no technical way to ensure that US citizens’ data are completely excluded. So, what the NSA is doing wouldn’t seem to comply with the Fourth Amendment, and it also wouldn’t obey the foreigner-only stipulation of FISA Section 702.
Here’s hoping the legal efforts of these two tech giants will finally bring these two disturbing violations into clear light.